Rappa v. Connecticut Co.

• Decision Date: 01 June 1921
• Citation: 96 Conn. 285,114 A. 81
• Court: Connecticut Supreme Court
• Parties: RAPPA v. CONNECTICUT CO.

114 A. 81

96 Conn. 285

RAPPA v. CONNECTICUT CO.

Supreme Court of Errors of Connecticut.

June 1, 1921

Appeal from Superior Court, New Haven County; John P. Kellogg Judge.

Action by Frank Rappa, by his guardian and next friend, against the Connecticut Company, for damages for personal injuries. From judgment for defendant, plaintiff appeals. Error, and new trial ordered.

The plaintiff, then a child less than four years old, was crossing Winthrop avenue in New Haven when he was struck and injured by defendant's trolley car. Plaintiff claimed to have proved that the injury was caused by the failure of the motorman to stop the car or bring it under control after he had notice that the plaintiff was or was likely to be in a position of peril. Defendant claimed that the motorman had his car under control, and that the plaintiff, after having reached a place of safety, suddenly turned back and ran into the front end of the car. The errors assigned relate to the charge of the court upon the issue of contributory negligence as applied to children of tender years, and as to the degree of care required of a motorman in operating his car at a place where he has notice that children are or may be in the street.

In an action for injuries to a boy less than four years old struck by defendant's street car, instructions that plaintiff was bound to use such care as a reasonably prudent boy would have used under similar circumstances, etc., failing to make proper allowance for the thoughtlessness of childhood, held erroneous.

Samuel Campner and Walter J. Walsh, both of New Haven, for appellant.

Harrison T. Sheldon, of New Haven, for appellee.

BEACH J.

We have very recently restated our rule as to the degree of care required of immature children in the case of Lederer v Connecticut Co., 95 Conn. 520, 111 A. 785. In that case the trial court charged the jury that the plaintiff's intestate, " if only five years and eight months old was bound to use such care as reasonably prudent boys of his age under similar circumstances, would have used." Of this instruction we said:

" This instruction differs from our rule of reasonable care for the immature child. We merely require him to use such judgment and experience as children of similar age, judgment, and experience would use under the circumstances. *** Knowledge of the child is one consideration in ascertaining whether he has been guilty of contributory negligence, but it is not the controlling element. The judgment of the boy-that is, his discretion to heed and his power of self-control-is the predominant element" -citing Brennan v. Fair Haven & Westville R. R. Co., 45 Conn. 284, 298, 29 Am.Rep. 679; Rohloff v. Fair Haven & Westville R. R. Co., 76 Conn. 689, 693, 58 A. 5; Birge v. Gardner, 19 Conn. 507, 512, 50 Am.Dec. 261.

In the instant case the court instructed the jury in several slightly different forms. Twice it is said that the plaintiff was bound to use such care " as a reasonably prudent boy of his age" would have used...