Wells v. McNutt

• Decision Date: 18 November 1916
• Citation: 189 S.W. 365
• Parties: WELLS v. McNUTT.
• Court: Tennessee Supreme Court

Page 365

189 S.W. 365

WELLS v. McNUTT.

Supreme Court of Tennessee.

November 18, 1916.

Appeal from Circuit Court, Knox County; Von A. Huffaker, Judge.

Action by Willie Wells, by next friend, against G. N. McNutt. From judgment of Court of Civil Appeals affirming judgment for defendant, plaintiff appeals. Affirmed.

F. E. Laughead, of Knoxville, for appellant. J. Harry Price, of Knoxville, for appellee.

WILLIAMS, J.

Plaintiff, a child of six years old, sues for personal injuries claimed to have been negligently caused by defendant while operating an automobile on one of the streets of Knoxville. The jury's verdict was in favor of defendant.

The sole assignment of error to be considered in this opinion relates to the trial judge's refusal to give the following request to charge, tendered by plaintiff:

"I charge you that Willie Wells, being but six years of age at the time she was injured, on account of her tender years and because she had not reached the age of discretion, cannot be chargeable with contributory negligence."

Instead, the trial judge charged, in substance, that it was for the jury to determine whether plaintiff by reason of her tender age was incapable of exercising any degree of care, and that she was required by the law to exercise only the degree of care which an ordinarily prudent child of her age might have been expected to use under like circumstances.

The Court of Civil Appeals on appeal held that there was no error in the rulings of the lower court: and we are asked to review and reverse the judgment of the appellate court.

As seen, the insistence of the plaintiff, as petitioner, is that an infant of the age of six years as a matter of law had not the capacity of being guilty of negligence that could contribute to the injuries suffered by her.

The question of contributory negligence on the part of children of tender years is one on which the courts have differed. That this is true is manifest from the text, as well as the cases cited, in 29 Cyc. 537-539:

"While it has been held that the law has prescribed no definite age at which a child must arrive before it can be charged with contributory negligence, practically no cases are found which hold that a child under six years of age can be charged with negligence. The decisions are conflicting as to whether children of six are chargeable with negligence or not, some holding that they are not, others that they may be, although not as a matter of law. After the age of seven the rule is that the child may be chargeable with contributory negligence."

It is apparent that some of the courts have been influenced by the rule of the criminal law exempting children under seven from responsibility for crime, or that for convenience they have adopted the criminal rule as analogous in the administration of civil remedies. The difficulty, as we...