Marfyak v. New England Transp. Co.

Decision Date07 May 1935
Citation179 A. 9,120 Conn. 46
CourtConnecticut Supreme Court
PartiesMARFYAK v. NEW ENGLAND TRANSP. CO.

Appeal from Superior Court, New Haven County; Carl Foster, Judge.

Action by Stephen Marfyak, Sr., administrator, against the New England Transportation Company to recover damages for the death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant, brought to the superior court and tried to the jury. From a verdict and judgment for plaintiff, defendant appeals.

No error.

Edward R. Brumley, of New York City, and James H Gardner, Jr., of New Haven, for appellant.

George C. Conway and Stephen F. Dunn, both of New Haven, for appellee.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

HINMAN, Judge.

The plaintiff's decedent, his son Stephen, Jr., was killed by coming in contact with a bus of the defendant while crossing a street in Torrington. He was five and one-half years old an active child in good health, and had attended school about three months up to the time of his death. The single assignment of error pertains to a portion of the charge dealing with the question of contributory negligence of the plaintiff's decedent, as follows: " In weighing and measuring the conduct of this five and one-half year old boy to determine whether or not he was guilty of contributory negligence, you must use as a standard of due care that care which a reasonably prudent boy of the age of five and one-half years would exercise under the circumstances surrounding this boy. A child lacks the knowledge, experience and judgment of an adult. His conduct cannot be measured by that of a reasonably prudent adult. Did Stephen Marfyak, Jr., do or fail to do that which a reasonably prudent boy of the age of five and one-half years would not have done or would not have failed to do under the circumstances by which he was surrounded? If so, was such act a proximate cause of his death? The defendant claims that the child ran heedlessly and recklessly into the side of the bus at a place between crosswalks where his presence could not be anticipated. The plaintiff claims that the child crossed the street as would any reasonably prudent child of the age of five and one-half years." Error is assigned in that thereby, it is claimed, the trial court " directed the jury to apply an objective, external standard of care to the conduct of the five and one-half year old decedent, although the proper standard is subjective and internal."

In determining whether or not an adult party was negligent, the standard to be applied by the trier is that of the ordinarily prudent man. Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 21 A. 675, 22 A. 544. This standard is applied by " placing a reasonably prudent man" in the situation of the party whose conduct is under inquiry, and then determining " whether his conduct would coincide" with that of the party. Laufer v. Bridgeport Traction Co., 68 Conn. 475, 492, 37 A. 379, 37 L. R. A. 533. " In applying this rule to the conduct of adults recourse is had to a mythical person called the ‘ standard man’ with whose conduct that of the actor is to be compared." Charbonneau v. MacRury, 84 N.H. 501, 509, 153 A. 457, 462, 73 A. L. R. 1266, 1273. This is " an external standard, and takes no account of the personal equation of the man concerned." Oceanic Steam Nav. Co. v. Aitken (The Germanic) 196 U.S. 589, 596, 25 S.Ct. 317, 318, 49 L.Ed. 610, 613. " Instead *** of saying that the liability for negligence should be coextensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe." Vaughan v. Menlove, 3 Bing. N.C. 468, 475; Id., 4 Scott, 244, quoted in Commonwealth v. Pierce, 138 Mass. 165, 176, 52 Am. Rep. 264, and referred to by Justice Holmes in the opinion in The Germanic, supra, as exploding, " if it needed exploding, the notion" that the standard should be " coextensive with the judgment of each individual." 20 R. C. L. p. 26. Such is the rule and the method of its application to the normal adult, whether he is charged with primary fault or with contributory negligence. Possessed of a yardstick with which the law presumes them to be familiar-the reasonably prudent man-the jury apply it to the conduct in question and determine whether it measures up to that standard.

However, " the law *** has regard for the immaturity of childhood, and does not require the same degree of care of a child as it does of an adult." Rutkowski v. Connecticut Light & Power Co., 100 Conn. 49, 53, 123 A. 25, 27. This indulgence in appraising the conduct of a child is not accorded through any arbitrary exception to the general rule of reasonable care under all of the circumstances. Although the standard which the rule makes applicable in testing the conduct of an adult cannot be employed in disregard of the actor's immaturity, a standard taking into account his age, mental development and experience, as disclosed by the evidence, is set up and applied. While the criterion of the care required of a child may be stated broadly to be that which an ordinarily prudent child of the same capacity to appreciate and avoid danger of injury would use under similar circumstances, it has been phrased, by the courts of the several states, in many different, although in essence similar, ways. 45 C.J. p....

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23 cases
  • Neal v. Shiels, Inc.
    • United States
    • Connecticut Supreme Court
    • February 19, 1974
    ...children is 'such care as may reasonably be expected of children of similar age, judgment and experience.' Marfyak v. New England Transportation Co., 120 Conn. 46, 50, 179 A. 9, 10, and cases cited; Greene v. DiFazio, 148 Conn. 419, 424, 171 A.2d 411. As to the care required of others in re......
  • Hoelter v. Mohawk Service, Inc.
    • United States
    • Connecticut Supreme Court
    • April 6, 1976
    ...v. Burrone Bros., Inc., 162 Conn. 187, 198, 292 A.2d 912; Dokus v. Palmer, 130 Conn. 247, 251, 33 A.2d 315; Marfyak v. New England Transportation Co., 120 Conn. 46, 48, 179 A. 9; Farrell v. Waterbury Horse R. Co., 60 Conn. 239, 248, 21 A. 675, 22 A. 544; Dexter v. McCready, 54 Conn. 171, 17......
  • Mahon v. Heim
    • United States
    • Connecticut Supreme Court
    • July 11, 1973
    ...also Santor v. Balnis, 151 Conn. 434, 436, 199 A.2d 2; Greene v. DiFazio, 148 Conn. 419, 424, 171 A.2d 411; Marfyak v. New England Transportation Co., 120 Conn. 46, 50, 179 A. 9, with the many cases cited therein on page 50. This accords with the generally accepted rule as summarized in Res......
  • Colucci v. Pinette
    • United States
    • Connecticut Supreme Court
    • November 17, 1981
    ...of similar age, judgment and experience.' Neal v. Shiels, (sic) 166 Conn. 3 at page 11, 347 A.2d 102 citing Marfyak v. New England Transportation Co., 120 Conn. 46 at 50, 179 A. 9; Greene v. DiFazio, 148 Conn. 419, 171 A.2d 411." 'As the care required of others in relation to children, the ......
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