the flow of the water through the plaintiff's land was impeded and diminished. He therèupon brought a common law action of tort. The court held that he was in some form entitled to a remedy for any damage he had sustained.3 The Constitution provides that, whenever the public exigencies shall require that the property of a private citizen shall be taken for public purposes he shall be compensated therefor; and in view of that provision, the court held that any statute which authorized the exercise of the right of eminent domain by a corporation, and failed to make adequate compensation to citizens who suffered loss thereby, was unconstitutional and void.4

In the case under consideration, however, the provision for compensation made by the statute, was held to be adequate; and, further, that such being the case, the plaintiff was restricted to the remedy provided by the statute, and was not at liberty to seek redress otherwise, as in this case, by a common law action. Nevertheless, it was held that a common law action would lie against the defendant company, if it had exceeded the powers granted in the statute, as by raising its dam too high, or by drawing off the water, reducing its level below the mark prescribed in the statute. In such case, and for damages caused thereby, the plaintiff was entitled to a common law remedy. For injuries suffered by reason of the exercise of the statutory power, he was limited to the statutory remedy.

50.

Watuppa etc Co. v. Fall River, 134 Mass. 267.

4 Conn. River etc Co. v. County Commrs., 127 Mass.,

THE DOCTRINE OF IMPUTED NEGLIGENCE, AS APPLIED TO CHILDREN.

.

In the evolution, which the law is, in these times, rapidly undergoing, only the fittest principles can survive.

One of the unsound doctrines that is destined to fall, is that still adhered to by several States, where in actions for injuries to children of tender years, or to their estates, caused by the negligence of the defendant, the child is held responsible for the contributory negligence of its parent, guardian, or person in charge of it, at the time of the injury.

It is believed that the weight of authority already concurs with the strong reasons against this ruling; as it is certain that there is a growing tendency of decision adverse to it.

It encounters the objection, at the very threshold, that it requires one person to answer for the wrong or error of another.

Imputing Negligence of Driver.-This unjust identification of parent, guardian or custodian, with the child, is fast going the way of the other identification of passenger and driver. The old doctrine of Thorogood v. Bryan,' holding the passenger in an omnibus, or public conveyance, responsible for the carelessness of its driver, decided merely upon an order to show cause, has been criticised in Tuff v. Warman,2 Waite v. N. E. R. Co.,3 and "The Milan." This rule, though followed in some American cases,5 has been rejected by a larger number. And now the Supreme Court of the United States, in a recent 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

4

18 Man. Gr. & Scott, 116.

22 C. B. (N. S.), 750.

3 El. B. & El. 728.

41 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.

9

TRAL LAW JOURNAL.7) That the negligence of a street car driver is not imputable to the passenger, is held in Bennett v. N. J. R. Co. Chapman v. N. H. R. Co., decides that a passenger on a train is not accountable for the negligence of the proprietors of the train.

When Parent Sues for Damages. It will be observed that the immediate question it is proposed to consider in this article, is not the application of this doctrine where the action is brought by the parent to recover for damages sustained by him from loss of the child's service, medical or other expenses, etc., it is properly agreed that in such actions the general rule of contributory negligence governs; and that no recovery can be had if the plaintiff has been guilty of negligence directly contributing to cause the injury to the child.10 This is but the ordinary case of contributory negligence of the party seeking damages for the negligence of another.

Imputed Negligence of Parent, etc. to Child. -But the issue raised in the cases we wish to refer to, is as to the effect upon the rights of the child, injured by a third person's carelessness, of the negligence of its parent or custodian.

In such cases, but three persons are involved, viz.: The defendant, or party charged with having caused the injury; the child plaintiff, who has sustained the injury; and the parent, or temporary keeper of the child. Of course, the argument assumes that the defendant has been negligent in the premises, in such a manner as to cause loss and damage to the child; otherwise, of course, there could be no recovery whatever. Now, as to the child, the question supposes it to be non sui juris, of tender years, and therefore incapable of negligence. It is common knowledge that a child of one, two, or more years, on up to different ages, in different instances, depending on the capacity of the infant, cannot justly be charged with carelessness, for the reason that it cannot justly be holden to

the exercise of any care or diligence. It is as irresponsible as a lamb or kitten. Such a person can no more be said to be careless, while sitting in the highway, or on the track of a railway than in its mother's lap. It has no faculties sufficiently developed to perceive the peril of such a situation. Hence, the law, which is founded on a thorough experience of human nature, declares that the child so situated shall not be accountable for any conduct of its own. To hold otherwise would be as absurd as to hold the bird culpable for flying within range of the rifle, or the moth for dashing into the flame. In each case, each follows its own instincts and impulses. The child loves to roam, and to its innocent mind all places are innocent. Upon this view the courts have acted, and in various instances have fixed certain ages, within which there was entire legal irresponsibility for negligence. Thus in Schmidt v. M. & St. P. R. Co.," the age fixed was eighteen months. In Walters v. C. R. I. P. R. Co.,12 the age was two years. In N. & P. R. Co. v. Ormsby, 13 the child was two years and ten months. In Chicago v. Hessing and Fish v. Missouri Furniture Co.,14 the child was four. In Chicago, etc. R. Co. v. Gregory, and Louisville, etc. Canal Co. v. Murphy,15 the age was five. And in Bay Shore R. Co. v. Harris, 16 the child was six. While in Ewen v. C. & N. W. R. Co.,17 it was held that a child of eight had passed beyond the period of absolute unaccountability. But after that period it is held that the degree of diligence required of the minor is proportionate to the age, maturity and capacity of the child. This is a transition state in the progress from infancy to maturity, which partakes of the irresponsibility of the one, and the full accountability of the other; when half child and half man, the plaintiff seeking damages is held to a degree of diligence suited to his ability to exercise it. More than this would be obvious injustice. Accountability should be exactly. adjusted to ability. In the parable, those

who had received but five talents were not expected to account for the use of ten.

And so are the cases, Lynch v. Nurdin, 18 R. Co. v. Gladman, 19 R. Co. v. Stout,20 Robinson v. Cone,21 and Schmidt v. M. & St. P. R. Co.22 While it is proper, because reasonable and just, to hold the minor responsible for the kind and degree of care which he is able to practice, the question whether he should be made to answer for the carelessness of his father, mother, guardian or custodian, becomes a very different one. When viewed closely it seems strange that such a question was ever raised. We think that in those States where the doctrine of imputed negligence in such cases has been established or followed, it has resulted largely from dicta, resting on an artificial or superficial view of the subject. Reasoning from the usual and general pecuniary responsibility of parents for the support and education of their offspring, and recognizing the injustice of inculpating the child found and injured in an exposed position, and looking no further, and overlooking the other relations of parent and child, such as the irresponsibility of the former for the torts and unnecessary debts of the latter, and the fact that the child is never liable for the wrongs or debts of the father, they appear to have reached their conclusion through some vague sense of a just identification of the two under all the circumstances. In Hartfield v. Roper,23 the leading case in support of the doctrine, the idea is expressed by Cowen, J., that this is the only way in which to punish the negligence of the parent. After stating that the infant, a boy of two years, run over in the street by a sleigh, is not above the law, and is liable for torts, that learned judge declares that he should not be allowed to be the heedless instrument of his own injury, and cannot profit by his own wrong, and that it is more fit that he should look to his guardian or keeper, applying "volenti non fit injuria." But in what legal, or other sense, pray, can a thoughtless child of two years be deemed "volens," consenting to be run over, or injured in any way? That was the very

18 1 A. & E. (N. S.) 28, 41, E. & L. 422.

19 15 Wall. 408.

20 17 Wall. 657.

21 22 Vt. 225.

22 23 Wis. 190.

23 21 Wend. 615.

last thing on earth that that child contemplated, when it sat playing in the snow, in the highway, if, indeed, it could be said to contemplate anything. Again, how could such a child be said to commit a wrong by such an act? or, in truth, by any act? As we have seen above, the courts unanimously hold such a child unable to use care, and therefore to do wrong; ergo, it cannot be said to profit by its own wrong. To hold a child of tender years, whether totally or partially incapable of diligence, answerable for the negligence of its parent or keeper, seems strictly analogous to the case of charging one person with the negligence of another, for whose conduct he is not responsible. The injustice of so doing seems at first blush most manifest and glaring, and a more careful scrutiny fails to alter the first impression.

The child, though often inevitably visited with the imperfections of the father and remote ancestor, through a physical and moral connection, should not, in law or justice, be bound by the conduct and actions of his parent, over which he has no sort of control. That, as was well said in Whirley v. Whitman,24 would be "literally to visit the transgressions of the parent upon the children.' The essence of justice is best expressed by the wise poet: "Where the offense is, let the great axe fall.” The child is not negligent at all, or, if at all, only in proportion to his capacity. Let him be held accountable to that degree, and that only. If, measured by that standard, his negligence has contributed directly to produce the injury of which he complains, under that established rule he must fall, and the negligent defendant go acquit. Thus far let him be holden, but no farther. Has the negligence of his parent or guardian also directly assisted in causing the injury? What consequences should follow from that? He ought to have his action against them for the injury, as he might have against either or both of two persons whose joint or several acts of negligence had injured him. Then he should not be made responsible for such parent's or guardian's negligence. Much less should the guilty defendant be permitted to take advantage of such co-operating wrong on the part of the parent

24 1 Head, Tenn. 610.

or guardian, to his own immunity and exoneration. This is literally justice with a vengeance. This is a turning of tables that upsets all our preconceived notions of equity. Here two wrongs do make a right. The innocent child plaintiff might have obtained satisfaction from the erring defendant. But there was an erring third person, and the union of the two errors neutralizes the wrong. The defendant who should make compensation for his own wrong is enabled to profit by the wrong of this third person, while the innocent sufferer is left unrequited. Here, then, we have a new application of an old paradox, and the greater the negligence the greater the impunity. This is not killing a thousand men, as in the familiar ballad, to transform the murder of one man into glory. But it is a case where the injury caused by the negligence of one is transmuted into innocence by the legal alchemy of a concurring negligence. There never was a more complete case of offering a premium on negligence. A driver seeing a young child sporting in the highway is relieved of all responsibility of careful driving, for the child's parents have negligently permitted their charge to stray from home, and it is everybody's prey. He can be run down by horse or engine. The child is a castaway. The same may be said of an insane person escaping from its guardian or committee. Placed without his fault in a perfectly defenseless situation, the law also withdraws its protecting shield. With only one negligent assailant the law would valiantly cope; but let two approach from opposite directions, and the law, like a poltroon, throws away its arms, and abandons the field. The little prattling child, left by its heedless parent to wanton in the snow or dust, alone of all human creatures, is beyond the pale of our laws, which the great lawyer styled "the perfection of the reason of all men." Hooker's definition of the law, that "the very least feels its care, and the greatest are not exempted from its power; all things, both in heaven and on earth do it homage, and the creatures of whatsoever form or order acknowledge it as the mother of their peace," must be abandoned, and an exception made of little children. This is a new and unrivalled slaughter of the innocents. But we will dwell no longer on the reason of

the rule by which one offends and another suffers.

Weight of Authority Against the Doctrine. -But we proceed to show that this unsound rule has not the support of the weight of authority.

We note, in passing, that certain prominent text writers oppose the doctrine: such as Field, 25 and Wharton, with great force.26

An investigation of the cases shows that while in England the doctrine has received only an equivocal endorsement, of the States which have ruled on the question the following recognize it, viz: New York, Massachusetts, Illinois, Missouri, Indiana, Maine, Kentucky and Maryland. While the follow

ing States reject it, viz: Pennsylvania, Ohio, Iowa, Connecticut, Vermont, Virginia, Tennessee and Nebraska, and Texas accepts the English view.

England.-Lynch v. Nurdin,27 decided in 1841, is the first leading case in England. There a boy of seven years got into, and was injured in, a cart, which, with horse attached had been carelessly left standing in the street by defendant's carman. Denman, C. J. and the Queen's Bench sustained a recovery. Although holding that the plaintiff was the cooperating cause of his own misfortunes, by doing an unlawful act. It will be observed that here there was no intimation that there was any carelessness on the part of the parent or custodian in permitting a child to go upon the streets of crowded London. inferences are all against the imputation of such negligence to the child, while the principle of the irresponsibility of the child, even for his own contributory negligence, in unlawfully trespassing upon the defendant's property, is distinctly recognized.

The

The last leading English case on the subject is Waite v. N. E. R. Co. 28 Here the court, in 1858, accepts the doctrine in a modified form. The plaintiff, a child of five, was injured by the carelessness of the railroad company while traveling with, and under the control of, her grandmother, whom the jury had found guilty of contributory negligence. The court, while applying the rule of imputed

25 Field on Corp., § 512; Field on Damages, § 195. 26 Whart. on Negl., § 310.

27 1 Ad. & El. (N. S.) 29.
28 El. B. & El., 96 E. C. L. 719.

negligence, placed it on the ground that the identification of the relative in charge with the child was as complete as if it had been a babe of a few days old, carried in her arms, as it is impossible, upon principle, to distinguish such a case from that of an absent negligent parent, it is evident the court hesitated to fully adopt the rule. For what difference can there be, when a parent has carried and placed his child upon a railroad track, or suffered him to wander there, whether the parent is personally present, when the child is run over, or is a mile away? The negligence of the parent, and the innocence of the child are alike in both cases.

Texas is the only State which approves Waite v. N. E. R. W. Co., and in doing so in G. H. & H. Ry. Co. v. Moore,29 where a child of six was run over by the cars, the court repudiates Hartfield v. Roper, saying, the Waite case is the "utmost limit to which the rule should be extended." There is a manifest inconsistency in this young and great State's thus repelling the one case and approving the other.

Cases Maintaing the Doctrine-New York. -Hartfield v. Roper, 30 decided in 1839, is the leading case, upon which most, if not all, the courts adopting the doctrine have relied. Judge Cowen's reasoning in support of the decision seems fallacious. He says, "To allow small children to resort to the highway alone, is criminal negligence." And that there is no other way, in a case where the party injured is a small child, to apply the rule that the injured party, drawing the mischief on himself, cannot recover, than to require due care at the hands of those to whom the law and the necessity of the case have delegated the exercise of discretion. The obvious answer is, that the rule should not be applied at all in such a case, for the plaintiff is too young to draw the mischief on itself. And when not too young to be responsible in part, let it suffer according to its responsibility. To be sure the child requires due care from those charged with the exercise of discretion in its behalf. But what if that care is not exerted ? Should the child suffer for that? is the question. Demonstrably, no. The learned judge then supposes, by way of argument, a luna

29 59 Tex. 64.

21 Wend., 615.

tic to be allowed by its committees to lie like a log in the road, or a child to suddenly throw itself in front of a vehicle, and asks, as a sort of test question, whether the traveler who unfortunately strikes him, should respond in damages. The answer is obvious: No; if not negligent. The inquiry is not to the purpose. But that State has followed Hartfield v. Roper 45 years, with a disposition at times, on the part of some of its courts, to modify the rigid rule, as the cases named below show.31

In Ihl v. 42d St. R. Co.,32 where a child of three, sent on an errand by its mother across a track, in charge of a child nine and onehalf, was run over and killed, Rapello, J. held: That if the conduct of the child would not have been negligent in an adult, and the injury was caused wholly by defendant's negligence, the negligence of the mother was too remote. This seems a departure from the doctrine. A child of that age is never considered negligent; but it was clearly negligence that contributed directly to the injury, to allow so young a child, so attended, to be in such a position of danger. The child was not as safe, and could not take the same care of itself there as an adult. If the mother had brought suit for loss of service of the child would not her own negligence have defeated a recovery? So the court really refused to follow Hartfield v. Roper, and to impute the mother's negligence to the child.

In Morrison v. Erie R. Co.,33 where a girl of 12 was injured as her father, with her in his arms, was stepping off a moving car, Folger, J., as was done in Waite v. N. E. R. W. Co., emphasises the fact that her father was present, controlling plaintiff's motions, though, as we have endeavored to show, this is an immaterial circumstance.

In Thurston v. Haarlem, etc. R. Co.,34 the court decline to apply Hartfield v. Roper to the case of a boy of nine, on the ground that it had no application to a child of his age and capacity, but if not, why not? And if not to one minor not sui juris, why to any? What is the essential difference in this respect between

31 Flynn v. Hatton, 43 How. Pr. 356; Lehman v. 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. 33 56 N. Y., 305. 34 60 N. Y., 333.