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the flow of the water through the plaintiff's THE DOCTRINE OF IMPUTED NEGland was impeded and diminished. He therè- LIGENCE, AS APPLIED TO CHILupon brought a common law action of tort. DREN. The court held that he was in some form entitled to a remedy for any damage he had In the evolution, which the law is, in these sustained.3 The Constitution provides that, times, rapidly undergoing, only the fittest whenever the public exigencies shall require principles can survive. that the property of a private citizen shall be One of the unsound doctrines that is detaken for public purposes he shall be com- stined to fall, is that still adhered to by sevpensated therefor; and in view of that pro- eral States, where in actions for injuries to vision, the court held that any statute which children of tender years, or to their estates, authorized the exercise of the right of emi- caused by the negligence of the defendant, nent domain a corporation, and failed to the child is held responsible for the contribumake adequate compensation to citizens who tory negligence of its parent, guardian, or suffered loss thereby, was unconstitutional person in charge of it, at the time of the inand void.4

jury. In the case under consideration, however, It is believed that the weight of authority the provision for compensation made by the already concurs with the strong reasons statute, was held to be adequate; and, fur- against this ruling; as it is certain that there ther, that such being the case, the plaintiff is a growing tendency of decision adverse to was restricted to the remedy provided by the it. statute, and was not at liberty to seek redress It encounters the objection, at the very otherwise, as in this case, by, a common law threshold, that requires one person to anaction. Nevertheless, it was held that a com- swer for the wrong or error of another. mon law action would lie against the defend- Imputing Negligence of Driver.-This unant company, if it had exceeded the powers just identification of parent, guardian or cusgranted in the statute, as by raising its dam todian, with the child, is fast going the way too high, or by drawing off the water, reduc- of the other identification of passenger and ing its level below the mark prescribed in the driver. The old doctrine of Thorogood v. statute. In such case, and for damages | Bryan,' holding the passenger in an omnibus, caused thereby, the plaintiff was entitled to or public conveyance, responsible for the a common law remedy. For injuries suffered carelessness of its driver, decided merely upby reason of the exercise of the statutory on an order to show cause, has been criticised power, he was limited to the statutory rem- in Tuff v. Warman,2 Waite v. N. E. R. Co.,3 edy.

and “The Milan." 4 This rule, though fol

lowed in some American cases, has been reWatuppa etc Co. v. Fall River, 134 Mass. 267. jected by a larger number. And now the 4 Conn. River etc Co. v. County Commrs., 127 Mass.,

Supreme Court of the United States, in a re50.

cent case, decided in January last, takes the negative, and exonerates the passenger in such a case, holding that this doctrine "was not applying any general rule of law, but was framing a new exception, based on fiction, and inconsistent with justice." (CEN

18 Man. Gr. & Scott, 116.
2 2 C. B. (N. S.), 750.
3 El. B. & El. 728.
4 1 Lushn. 388.

5 Lockhart v. Lichtenthaler, 46 Pa. St. 151; Phila. R. Co. v. Boyer, 97 Pa. St. 91.

6 Colgrove v. R. Co. 20 N. Y. 492; Barrett v. R. Co., 45 N. Y. 628; Turnpike Co. v. Stewart, 2 Met. (Ky.) 119; Louisville R. Co. v. Case, 9 Bush. 728; Cuddy v. Horn, 46 Mich. 596; See note, 24 Am. L. Reg. 710.

In each case,

TRAL LAW JOURNAL.) That the negligence of the exercise of any care or diligence. It is & street car driver is not imputable to the as irresponsible as a lamb or kitten.

Such a passenger, is held in Bennett v. N. J. R.

person can no more be said to be careless, Co.8 Chapman v. N. H. R. Co.,' decides while sitting in the highway, or on the track that a passenger on a train is not accounta of a railway than in its mother's lap. It has ble for the negligence of the proprietors of no faculties sufficiently developed to perceive the train.

the peril of such a situation. Hence, the When Parent Sues for Damages. It will be law, which is founded on a thorough experiobserved that the immediate question it is ence of human nature, declares that the child proposed to consider in this article, is not the so situated shall not be accountable for any application of this doctrine where the action conduct of its own. To hold otherwise would is brought by the parent to recover for dam be as absurd as to hold the bird culpable for ages sustained by him from loss of the child's flying within range of the rifle, or the moth service, medical or other expenses, etc., it is for dashing into the flame. properly agreed that in such actions the gen each follows its own instincts and impulses. eral rule of contributory negligence governs;

The child loves to roam, and to its innocent and that no recovery can be had if the plain mind all places are innocent. Upon this view tiff has been guilty of negligence directly the courts have acted, and in various instances contributing to cause the injury to the child.10 have fixed certaiņ ages, within which there This is but the ordinary case of contributory was entire legal irresponsibility for neglinegligence of the party seeking damages for gence. Thus in Schmidt v. M. & St. P. R. the negligence of another.

Co.," the age fixed was eighteen months. In Imputed Negligence of Parent, etc. to Child. Walters v. C. R. I. P. R. Co.,12 the age was -But the issue raised in the cases we wish to two years. In N. & P. R. Co. v. Ormsby, 13 the refer to, is as to the effect upon the rights of child was two years and ten months. In Chithe child, injured by a third person's care cago v. Hessing and Fish v. Missouri Furnilessness, of the negligence of its parent or ture Co., 14 the child was four.

In Chicago, custodian.

etc. R. Co. v. Gregory, and Louisville, etc. In such cases, but three persons are in Canal Co. v. Murphy, 15 the age was five. volved, viz. : The defendant, or party charged And in Bay Shore R. Co. v. Harris, 16 the with having caused the injury; the child child was six. While in Ewen v. C. & N. plaintiff, who has sustained the injury; and W. R. Co.,17 it was held that a child of eight the parent, or temporary keeper of the child. had passed beyond the period of absolute unOf course, the argument assumes' that the

accountability. But after that period it is held defendant has been negligent in the premises, that the degree of diligence required of the in such a manner as to cause loss and damage minor is proportionate to the age, maturity to the child; otherwise, of course, there and capacity of the child. This is a transicould be no recovery whatever. Now, as to tion state in the progress from infancy to the child, the question supposes it to be non maturity, which partakes of the irresponsisui juris, of tender years, and therefore in-bility of the one, and the full accountability capable of negligence. It is common knowl of the other; when half child and half man, edge that a child of one, two, or more years, the plaintiff seeking damages is held to a on up to different ages, in different instances, degree of diligence suited to his ability to exdepending on the capacity of the infant, can ercise it. More than this would be obvious not justly be charged with carelessness, for injustice. Accountability should be exactly · the reason that it cannot justly be holden to adjusted to ability. In the parable, those

7 22 Cent. L. J. 243.
8 36 N. J. 7 Vroom, 225; 8. C. 13 Am. Rep. 435.
9 19 N. Y. 341.

10 St. L. I. M. & S. R. Co. v. Freeman, 36 Ark. 41; Albertson v. Keokuk, etc. R. Co. 48 Iowa, 292; Evansville, etc. R. Co. v. Wolf, 59 Ind. 89; Jeffersonville, etc. R. Co. v. Bowen, 49 Ind. 154; Smith v. O'Conner, 48 Pa. St. 220.

11 23 Wis. 188.
12 41 Iowa, 71.
18 27 Grattan, 455.
14 83 ml. 204; 10 Mo. App. 62.
16 58 III. 226; 9 Bush. 522.
16 67 Ala, 6.
17 38 Wis. 614.


who had received but five talents were not last thing on earth that that child contemexpected to account for the use of ten. plated, when it sat playing in the snow, in

And so are the cases, Lynch v. Nurdin," the highway, if, indeed, it could be said to R. Co. v. Gladman, 19 R. Co. v. Stout,20 Rob contemplate anything. Again, how could inson v. Cone, 21 and Schmidt v. M. & St. P. such a child be said to commit a wrong by R. Co.” While it is proper, because reason such an act? or, in truth, by any act? As able and just, to hold the minor responsible we have seen above, the courts unanimously for the kind and degree of care which he is

hold such a child unable to use care, and able to practice, the question whether he therefore to do wrong; ergo, it cannot be should be made to answer for the carelessness said to profit by its own wrong.

To hold a of his father, mother, guardian or custodian, child of tender years, whether totally or parbecomes a very different one. When viewed tially incapable of diligence, answerable for closely it seems strange that such a question the negligence of its parent or keeper, seems was ever raised. We think that in those strictly analogous to the case of charging one States where the doctrine of imputed negli person with the negligence of another, for gence in such cases has been established or whose conduct he is not responsible. The followed, it has resulted largely from dicta, injustice of so doing seems at first blush most resting on an artificial or superficial view of manifest and glaring, and a more careful the subject. Reasoning from the usual and scrutiny fails to alter the first impression. general pecuniary responsibility of parents The child, though often inevitably visited for the support and education of their off with the imperfections of the father and respring, and recognizing the injustice of in mote ancestor, through a physical and moral culpating the child found and injured in an

connection, should not, in law or justice, be exposed position, and looking no further, and bound by the conduct and actions of his paoverlooking the other relations of parent and

rent, over which he has no sort of control. child, such as the irresponsibility of the for- That, as was well said in Whirley v. Whitmer for the torts and unnecessary debts of

man,24 would be "literally to visit the transthe latter, and the fact that the child is never

gressions of the parent upon the children.liable for the wrongs or debts of the father,

The essence of justice is best expressed by they appear to have reached their conclusion the wise poet: “Where the offense is, let the through some vague sense of a just identifi- great axe fall.” The child is not negligent cation of the two under all the circumstances. at all, or, if at all, only in proportion to his In Hartfield v. Roper,23 the leading case in

capacity. Let him be held accountable to support of the doctrine, the idea is expressed that degree, and that only. If, measured by by Cowen, J., that this is the only way in which that standard, his negligence has contributed to punish the negligence of the parent. After directly to produce the injury of which he stating that the infant, a boy of two years, complains, under that established rule he run over in the street by a sleigh, is not above must fall, and the negligent defendant go the law, and is liable for torts, that learned acquit.

acquit. Thus far let him be holden, but no judge declares that he should not be allowed farther. Has the negligence of his parent or to be the heedless instrument of his own in- guardian also directly assisted in causing the jury, and cannot profit by his own wrong, injury? What consequences should follow and that it is more fit that he should look to from that? He ought to have his action his guardian or keeper, applying "volenti non against them for the injury, as he might have fit injuria.But in what legal, or other sense, against either or both of two persons whose pray, can a thoughtless child of two years be joint or several acts of negligence had indeemed "volens,consenting to be run over, jured him. Then he should not be made reor injured in any way? That was the very sponsible for such parent's or guardian's neg

ligence. Much less should the guilty defend18 1 A. & E. (N. S.) 28, 41, E. & L. 422.

ant be permitted to take advantage of such 19 15 Wall. 408. 2017 Wall. 657.

co-operating wrong on the part of the parent 21 22 Vt. 225. 22 23 Wis. 190. 23 21 Wend. 615.

24 1 Head, Tenn. 610.

or guardian, to his own immunity and exon the rule by which one offends and another eration. This is literally justice with a ven suffers. geance. This is a turning of tables that up Weight of Authority Against the Doctrine. sets all our preconceived notions of equity. -But we proceed to show that this unsound Here two wrongs do make a right. The in rule has not the support of the weight of aunocent child plaintiff might have obtained thority. satisfaction from the erring defendant.


We note, in passing, that certain prominent there was an erring third person, and the text writers oppose the doctrine: such as union of the two errors neutralizes the wrong. Field, 25 and Wharton, with great force. 26 The defendant who should make compensa An investigation of the cases shows that tion for his own wrong is enabled to profit by while in England the doctrine has received the wrong of this third person, while the in only an equivocal endorsement, of the States nocent sufferer is left unrequited. Here, which have ruled on the question the followthen, we have a new application of an old ing recognize it, viz: New York, Massachuparadox, and the greater the negligence the setts, Illinois, Missouri, Indiana, Maine, greater the impunity. This is not killing a Kentucky and Maryland. While the followthousand men, as in the familiar ballad, to ing States reject it, viz: Pennsylvania, Ohio, transform the murder of one man into glory. Iowa, Connecticut, Vermont, Virginia, TenBut it is a case where the injury caused by nessee and Nebraska, and Texas accepts the the negligence of one is transmuted into in- English view. nocence by the legal alchemy of a concurring England.–Lynch v. Nurdin, 27 decided in negligence. There never was a more com 1841, is the first leading case in England. plete case of offering a premium on negli- | There a boy of seven years got into, and was gence. A driver seeing a young child sport- injured in, a cart, which, with horse attached ing in the highway is relieved of all responsi had been carelessly left standing in the street bility of careful driving, for the child's pa by defendant's carman. Denman, C. J. and rents have negligently permitted their charge the Queen's Bench sustained a recovery. Alto stray from home, and it is everybody's though holding that the plaintiff was the coprey. He can be run down by horse or en operating cause of his own misfortunes, by gine. The child is a castaway. The same

doing an unlawful act. It will be observed may be said of an insane person escaping that here there was no intimation that there from its guardian or committee. Placed was any carelessness on the part of the parwithout his fault in a perfectly defenseless

ent or custodian in permitting a child to go

The situation, the law also withdraws its protect

upon the streets of crowded London. ing shield. With only one negligent assail

inferences are all against the imputation of ant the law would valiantly cope; but let two

such negligence to the child, while the prinapproach from opposite directions, and the ciple of the irresponsibility of the child, even law, like a poltroon, throws away its arms,

for his own contributory negligence, in unand abandons the field. The little prattling lawfully trespassing upon the defendant's child, left by its heedless parent to wanton in

property, is distinctly recognized. the snow or dust, alone of all human crea

The last leading English case on the subtures, is beyond the pale of our laws, which

ject is Waite v. N. E. R. Co.28 Here the court, the great lawyer styled "the perfection of

in 1858, accepts the doctrine in a modified

form. the reason of all men.” Hooker's definition

The plaintiff, a child of five, was in. of the law, that "the very least feels its care,

jured by the carelessness of the railroad and the greatest are not exempted from its

company while traveling with, and under the

control of, her grandmother, whom the jury power; all things, both in heaven and on earth

had found guilty of contributory negligence. do it homage, and the creatures of whatsoever form or order acknowledge it as the mother

The court, while applying the rule of imputed of their peace,” must be abandoned, and an exception made of little children. This is a 25 Field on Corp., $ 512; Field on Damages, $ 195. new and unrivalled slaughter of the innocents.

26 Whart. on Negl., $ 310.

27 1 Ad. & El. (N. S.) 29. But we will dwell no longer on the reason of 28 El. B. & El., 96 E. C. L. 719.


negligence, placed it on the ground that the tic to be allowed by its committees to lie like identification of the relative in charge with a log in the road, or a child to suddenly throw the child was as complete as if it had been a itself in front of a vehicle, and asks, as a babe of a few days old, carried in her arms, sort of test question, whether the traveler as it is impossible, upon principle, to distin- who unfortunately strikes him, should respond guish such a case from that of an absent ne- in damages. The answer is obvious: No; if gligent parent, it is evident the court hesitat

not negligent. The inquiry is not to the pured to fully adopt the rule. For what differ


But that State has followed Hartfield ence can there be, when a parent has carried v. Roper 45 years, with a disposition at times, and placed his child upon a railroad track, on the part of some of its courts, to modify suffered him to wander there, whether the the rigid rule, as the cases named below parent is personally present, when the child

show. 31 is run over, or is a mile away? The negli- In Ihl v. 42d St. R. Co.,32 where a child of gence of the parent, and the innocence of

three, sent on an errand by its mother across the child are alike in both cases.

a track, in charge of a child nine and oneTexas is the only State which approves half, was run over and killed, Rapello, J.

held: G. H. & 4. Ry. Co. v. Moore, 29 where a child not have been negligent in an adult, and the of six was run over by the cars, the court re

injury was caused wholly by defendant's nepudiates Hartfield v. Roper, saying, the Waite

gligence, the negligence of the mother was case is the utmost limit to which the rule

too remote. This seems a departure from the should be extended." There is a manifest

doctrine. A child of that age is never coninconsistency in this young and great State's

sidered negligent; but it was clearly neglithus repelling the one case and approving the

gence that contributed directly to the injury, other.

to allow so young a child, so attended, to be in Cases Maintaing the DoctrineNew York.

such a position of danger. The child was not as -Hartfield v. Roper, 30 decided in 1839, is safe, and could not take the same care of itthe leading case, upon which most, if not all, self there as an adult. If the mother had the courts adopting the doctrine have relied. brought suit for loss of service of the child Judge Cowen's reasoning in support of the would not her own negligence have defeated decision seems fallacious. He says, “To al

a recovery? So the court really refused to low small children to resort to the highway follow Hartfield v. Roper, and to impute the alone, is criminal negligence." And that

mother's negligence to the child. there is no other way, in a

case where the

In Morrison v. Erie R. Co.,33 where a girl party injured is a small child, to apply the

of 12 was injured as her father, with her in rule that the injured party, drawing the mis- his arms, was stepping off a moving car, chief on himself, cannot recover, than to re- Folger, J., as was done in Waite v. N. E. R. quire due care at the hands of those to whom

W. Co., emphasises the fact that her father the law and the necessity of the case have was present, controlling plaintiff's motions, delegated the exercise of discretion. The

though, as we have endeavored to show, this obvious answer is, that the rule should not be is an immaterial circumstance. applied at all in such a case, for the plaintiff is

In Thurston v. Haarlem, etc. R. Co., 34 the too young to draw the mischief on itself. And

court decline to apply Hartfield v. Roper to when not too young to be responsible in part, the case of a boy of nine, on the ground that let it suffer according to its responsibility. To it had no application to a child of his age and be sure the child requires due care from those

capacity, but if not, why not? And if not to charged with the exercise of discretion in its

one minor not sui juris, why to any? What is behalf. But what if that care is not exerted ? the essential difference in this respect between Should the child suffer for that? is the question. Demonstrably, no. The learned judge

81 Flynn v. Hatton, 43 How. Pr. 356; Lehman v. then supposes, by way of argument, a luna- Brooklyn, 29 Barb. 237; Mangam v. Brooklyn R. Co.,

38 N. Y. 457; Thurber v. Haarlem R. Co., 60 N. Y. 333.

32 47 N. Y., 317. 29 59 Tex. 64.

33 56 N. Y., 305. 0 21 Wend., 615.

84 60 N. Y., 333.

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