Smith v. O'Connor

• Decision Date: 01 January 1864
• Citation: 48 Pa. 218
• Parties: Smith versus O'Connor.
• Court: Pennsylvania Supreme Court

Page 218

48 Pa. 218

Smith versus O'Connor.

Supreme Court of Pennsylvania.

ERROR to the Common Pleas of Allegheny county.

COPYRIGHT MATERIAL OMITTED

Marshall & Brown, for plaintiff in error.

Defendant's counsel presented no printed argument.

The opinion of the court was delivered by STRONG, J.

This was an action of trespass upon the case brought by a girl seven years old, suing by her next friend, to recover from the defendant damages for his having negligently driven a horse and wagon over her while she was crossing one of the streets in the city of Pittsburgh. The question whether the defendant had been guilty of the negligence alleged was fairly submitted to the jury, and in regard to that there is no complaint. The errors assigned here relate principally to the instruction given respecting the effect of negligent conduct by the plaintiff herself; conduct which contributed to the injury she had sustained. Upon this subject the parties were at variance in the court below, and in reference to it each sought specific instruction to the jury. On the part of the plaintiff the court was asked to charge, "that the rule of law relating to mutual negligence on the part of a plaintiff and defendant, between adults, does not apply to the case of a child seven years of age who is a party," and this proposition the court affirmed. On the other hand, the defendant requested the court to charge, "that if the plaintiff was guilty of any negligence on her part, which contributed to the accident, she could not recover in this action, although the defendant might have been also guilty of negligence or want of due care." To this point the court returned a negative answer, adding, however, the qualification "unless the degree of negligence was such on both sides that the jury could not determine by whose fault the accident happened." Precisely what was meant by this qualification is not very evident, and we need not inquire, for it can have no bearing upon any of the errors assigned. Other similar instructions were given, but the answers to these two points will suffice to show what importance, if any, the jury was permitted to attach to the negligent conduct of the plaintiff, which it was alleged had been a concurrent cause of the injury she had sustained. A consideration of the conduct of the plaintiff was not withdrawn from the jury, for they were expressly instructed that the child was to be held to the exercise of that degree of care and discretion ordinarily to be expected from children of its age, neither more nor less; but the court refused to instruct them that the same degree of caution is demanded of an infant of tender years, in order to enable her to maintain an action for a personal injury, as is exacted from an adult. Herein it is alleged there was error, and the argument of the plaintiff in error has been directed in this court to show that the admitted rule that when an injury has been the result of mutual and concurring negligence in both parties, no action will lie by either, is applicable in its fullest extent to an action in which the plaintiff is an infant seven years old. We are asked to approve and apply the doctrine held by the New York courts, and first enunciated in Hartfield v. Roper & Newell, 21 Wend. 615. There it is ruled that the negligence or imprudence of the parents or guardians in allowing a child of tender age to be exposed to injury in a highway, furnishes the same answer to an action by the child as the negligence or other fault of an adult plaintiff would in a similar case. The negligence of the parents or guardians is imputed to the child, and hence unless the infant plaintiff has exercised that care and prudence which is demanded of an adult, unless equally guiltless of any negligence concurring with the wrongful act of a defendant in causing an injury, no action can be sustained. This is compelling the child to the exercise not of its own but of the parents' discretion. It is holding it responsible for the ordinary care of adults. In our opinion the rule thus broadly stated does not rest upon sound reason. In maintaining it the New York courts stand supported only by the Supreme Court of Massachusetts in the case of Holly v. The Boston Gas Light Company, 8 Gray 123. On the other hand, the Court of Queen's Bench, after full consideration, held in Lynch v. Nurdin, 1 Ad. & E., N. S. 29, that a defendant was liable to an infant seven years old, in an action on the case for an injury resulting from his negligence, though the plaintiff was a trespasser, and contributed to the mischief by his own act. The concurring fault of such a plaintiff was not allowed to bar his action, and the rule invoked by the plaintiff in error in this case, and generally enforced against an adult plaintiff, was...