Charbonneau v. MacRury

Decision Date06 January 1931
Citation153 A. 457
CourtNew Hampshire Supreme Court

Transferred from Superior Court, Rockingham County; Young, Judge.

Action by Joseph Charbonneau, administrator of the estate of Robert Charbonneau, against Colin MacRury and another. Nonsuit was granted as to defendant named, and verdict was returned for defendant Elwood P. MacRury. Plaintiff excepted to instructions of court; and case was transferred.

Judgment for defendant Elwood F. MacRury.

Case, for negligence. The plaintiff's son and intestate, aged three years, was struck and killed by the defendant Colin's automobile, driven by his minor son, the defendant Elwood. The latter was seventeen years of age and duly licensed. Trial by jury. A nonsuit as to Colin was granted at the close of the plaintiff's evidence. A verdict was returned for the defendant Elwood.

The court charged the jury that the standard by which the defendant's care should be measured was that "of the average person of ordinary prudence acting under like circumstances and conditions." Upon the suggestion of counsel that a defendant minor should not be held to the same degree of care as an adult, the court made the following statement to the jury: "During the course of my instructions to you I told you that the standard by which care on the part of the defendant should be measured would be that of the average person of ordinary prudence acting under like circumstances and conditions. I should like to modify that to this extent: That in judging of the conduct of the defendant, it appearing that he is a minor seventeen or so years of age, * * * his conduct should be judged according to the average conduct of persons of his age and experience. I think I will leave it right there. The standard which you should use in judging of his conduct should be that of the average person of his age and experience." To this the plaintiff excepted.

William H. Sleeper, of Exeter, and Boivin & Amyot, of Manchester, for plaintiff.

Hughes & Burns, of Dover, for defendant.


The plaintiff concedes that the infancy of a person is of material importance in determining whether he has been guilty of contributory negligence, but contends that a minor charged with actionable negligence is to be held to the standard of care of an adult without regard to his non-age and want of experience. While the issue thus presented has been mooted in discussion by writers, there is a dearth of judicial authority directly in point.

The two leading cases dealing with the specific question are Neal v. Gillett (1855) 23 Conn. 437, 442, and Briese v. Maechtle (1911) 146 Wis. 89, 91, 130 N. W. 893, 894, 35 L. R. A. (N. S.) 574, Ann. Cas. 1912C, 176. In the former the defendants, thirteen and sixteen years of age, playing ball by the roadside, were charged with negligently passing a ball so close to the head of the plaintiff's horse as to produce fright and cause the injury. Exception was taken by the defendants to a refusal to charge that the jury were at liberty to take into consideration their age in connection with the other circumstances of the case, and "that the law would not require the same acts of caution, and prudence in a child, as in a man"; and also to the instruction given, namely, that "the age of the defendants was not to be taken into account by the jury in determining the question of negligence as they were only to allow in any event actual damages, this being all the plaintiff claimed." It was there contended by the plaintiff's counsel: (1) That a child incapable of exercising intelligent volition was liable for actual damages committed by him, (2) that cases in which extreme youth had been held to excuse a child from exercising ordinary care were exclusively cases where the child had been plaintiff, and (3) that children of the age of the defendants were bound to exercise the same care as adults. The opinion reads: "A majority of the court are of opinion that the charge was right; though we do not intend to decide whether the distinction taken by the plaintiffs' counsel in regard to the protection which infancy, or 'nonage,' affords, when claimed by a plaintiff, and when set up by a defendant, is well taken or not, and only remark, that we have been referred to no authority, which directly sanctions such distinction. We place our determination upon a different ground." An obiter dictum to like effect is to be found in Roberts v. Ring, 143 Minn. 151, 153, 173 N. W. 437, 438, where, after stating the rule that, in considering the contributory negligence of a seven year old boy plaintiff the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity, the court remarked: "It would be different if he had caused injury to another. In such a case he could not take advantage of his age or infirmities."

Briese v. Maechtle, supra, was an action in behalf of a boy of nine years of age charging a defendant of ten years with negligent injury inflicted in a collision while playing games with their schoolmates—the plaintiff at marbles and the defendant at tag. The court there said: "Infants may be guilty of actionable negligence, and, even though the defendant was engaged in a perfectly lawful occupation, he may have conducted himself so negligently as to make himself liable for damages resulting from such negligence Here, however, comes in the marked difference between the tests of negligence as applied to the act of an adult and the same act when committed by a child. The rule is that a child is only required to exercise that degree of care which the great mass of children of the same age ordinarily exercise under the same circumstances, taking into account the experience, capacity, and understanding of the child. * * * This was the measure of the defendant's duty, no greater and no less." The court, reviewing the facts, considered that no one could say that the defendant was doing anything more or less than healthy boys of his age have done from time immemorial, holding in effect that, inasmuch as the defendant's conduct complied with the prescribed standard, there could be no recovery. The case appears to be directly in point for the defendant here.

Dicta supporting the latter view is to be found in several cases. In Bradley v. Andrews (1879) 51 Vt. 530, 533, a request for a charge that the jury could not hold the defendant, a lad of thirteen, to the same degree of care that they would a man of full age and strength of mind was said to point to a well-settled legal principle, and that a disregard of the request would have been error had the case required its application. In Gulf, etc., Ry. Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 27, 19 Am. St. Rep. 755, it is said: "The general rule is that infants are liable for torts committed by them when the intent with which the act is done is not an element on which liability depends. But, in determining whether contributory negligence exists, the intelligence of the child must be considered; for a child's care must be measured by its intelligence, whether it be the actor or sufferer." In Bullock v. Babcock (1829) 3 Wend. (N. Y.) 391, 394, the court held, "when infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults." In Harvey v. Dunlop, Lalor's Supp. (Hill & Denio) (N. Y.) 193, 195, it is said that, "In order to arrive at a decision upon this question the jury had a right to take into consideration [inter alia] the childhood of the parties."

A like conflict of views appears among legal scholars and text-book writers. Henry T. Terry, in his article on Negligence, 29 Harv. L. Rev. at page 47, says: "The test of reasonableness is what would be the conduct or judgment of what may be called a standard man in the situation of the person whose conduct is in question. * * * Every man, whether he is a standard man or not, is required to act as a standard man would. If by chance he is not such a man, he may * * * make a mistake and act so as to be guilty of legal negligence, though he has used all such care and forethought as he was capable of. In the case of contributory negligence there is an exception to this rule in the case of abnormal persons, such as children and persons of unsound mind. They are not required to act like a standard man, but only to use such judgment as they are capable of. But as to negligence which is not merely contributory, as to negligent wrongs against others, the standard man test applies to their conduct also."

On the other hand, Prof. Bohlen, in his Studies in the Law of Torts (1926) p. 543 (59 Am. L. Rev. 864), says (page 568): "There is a dearth of authority as to the liability of infants or insane persons for harm done to others by acts which would have been negligent in adult or normal persons, but there is a plethora of authority in a field closely allied thereto. * * * The reports are full of cases in which infants have been held incapable of contributory negligence. * * * (Page 570) If our law recognizes infants and insane persons as incapable of exercising that care for their own protection which is required of normal persons as a condition to their right to redress for injuries caused by the wrongful acts of others and relieves them from the penalty which such lack of care would, but for their incapacity, impose, it would be inconsistent and arbitrary to penalize them by requiring them to compensate others whom they injure by conduct, which, though guilty in others, is, by reason of their incapacity, innocent in them. * * * It would therefore seem * * * that where a liability, like that for the impairment of the physical condition of another's body or property, is imposed upon persons capable of fault only if they have been guilty of fault, immaturity of age or mental deficiency which destroys the capacity for fault, should preclude the possibility of...

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