child of tender years (or other person incapable of taking ordinary care of himself), but in the custody of M., an adult, and one or both of them suffer harm under circumstances tending to prove negligence on the part of Z., and also contributory negligence on the part of M. (e), Z. will not be liable to A. if M.'s negligence alone was the proximate cause of the mischief. Therefore if M. could, by

(e) Waite v. N. E. R. Co. (1859), Ex. Ch. E. B. & E. 719, 27 L. J. Q. B. 417, 28 L. J. Q. B. 258. This case is expressly left

untouched by Mills v. Armstrong, 13 App. Ca. 1 (see at pp. 10, 19), 57 L. J. P. 65.

Accidents to children in custody of adult. It may be stated as a general rule, that where a child of tender years, while in the custody of an adult, is injured by the negligence of another, and it is proved that the negligence of the adult so contributed to the injury that under the same circumstances except that, if the adult had been alone and so injured, his contributory negligence would have barred his right of action, then the right of action for the child's injury is barred for the same reason. The negligence of the adult is imputed to the child. In deciding cases of this class the difficulties that have been met are to determine: (1) Whether the child is wholly incapable of exercising care; (2) what amounts to custody. These are questions of fact and properly go to the jury. It may be said that, in general, it is incumbent upon the adult to show himself free from contributory negligence. See Ratte v. Dawson, 50 Minn. 450; 52 N. W. Rep. 965; Texas & P. Ry. Co. v. Morin, 66 Tex. 133; 18 S. W. Rep. 345. But see Shippy v. Village of Au Sable, 85 Mich. 280; 48 N. W. Rep. 587; Battishill v. Humphreys, 64 Mich. 503; 31 N. W. Rep. 894.

"Some authorities seem to make a distinction between cases where the contributory negligence of the parent occurs while he has the child under his immediate control, and other cases which occur when the child is away from the parent." Norfolk & W. R Co. v. Groseclose's Admr., 88 Va. 267; 13 S. E. Rep. 455. See Mayor, etc. of Vicksburg v. McLain, (Miss.), 6 So. Rep. 774; Jeffersonville, etc. R. Co. v. Bowen, 40 Md. 545; Pittsburg, A. & M. Ry. Co. v. Pearson, 72 Pa. St. 169; Smith v. Hestonville, etc. Ry. Co., 92 Pa. St. 450; 37 Am. Rep. 705; Cauley v. Pitts., etc. Ry. Co., 95 Pa. St. 398; Wright v. Malden & M. R. R. Co., 4 Allen, 283; Holly v. Boston Gas Light Co., 8 Gray, 123; Gibbons v. Williams, 135 Mass., 333; Griffin v. Lawrence, Id. 363; Payne v. Humeston & S. Ry. Co., 70 Ia. 584; 31 N. W. Rep. 886; Cartarso v. The Burgundia, 29 Fed. Rep. 464; Gunderson v. Northwestern Elevator Co., 47 Minn. 161; 49 N. W. Rep. 694. But see Erie Pass. Ry. Co. v. Schuster, 11 Pa. St. 412; 57 Am. Rep. 471.

such reasonable diligence as is commonly expected of persons having the care of young children, have avoided the consequences of Z.'s negligence, A. is not entitled to sue Z. and this not because M.'s negligence is imputed by a fiction of law to A., who by the hypothesis is incapable of either diligence or negligence, but because the needful foundation of liability is wanting, namely, that Z.'s negligence, and not something else for which Z. is not answerable and which Z. had no reason to anticipate, should be the proximate cause.

Children, etc., unattended. Now take the case of a child not old enough to use ordinary care for its own safety, which by the carelessness of the person in charge of it is allowed to go alone in a place where it is exposed to danger. If the child comes to harm, does the antecedent negligence of the custodian

Children unattended. It is an accepted rule that the law does not exact from an infant the same degree of care and prudence in the presence of danger as is exacted from adults. An infant is bound only to exercise that care which can reasonably be expected of one of its age. In the case of Cleveland Rolling Mill v. Corrigan (46 Ohio, 283; 20 N. E. Rep. 469), the court said: "We think it a sound rule, therefore, that, in the application of the doctrine of contributory negligence to children, in actions by them, or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rule which governs that of adults; and, while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under similar circumstances." See Railroad Co. v. Stout, 17 Wall. 660; Wright v. Detroit, etc. Ry. Co., 77 Mich. 123; 43 N. W. 765; Hassenger v. Railroad Co., 48 Mich. 205; 12 N. W. Rep. 155; Snow v. Provincetown, 120 Mass; 580; Kay v. Railroad Co., 65 Pa. St. 269; Lynch v. Smith, 104 Mass. 52; Plumley v. Birge, 124 Mass. 57; 26 Am. Rep. 645; Balt. City Ry. v. McDonnell, 43 Md. 534; Government St. R. Co. v. Hanlon, 53 Ala. 70; Morrissey v. Eastern R. Co., 126 Mass. 377; Jones v. Utica & B. R. R. Co., 36 Hun, 115; Matley v. Whittier Machine Co., 140 Mass. 337; Byrne v. New York Cent. etc. R. Co., 83 N. Y. 621; Wiswell v. Doyle (Mass.), 35 N. E. Rep. 107; Chicago etc. R. Co. v. Grablin, 56 N. W. Rep. 796; Sheridan v. Brooklyn & N. R. Co., 36 N. Y. 42; Rockford etc. Co. v.

make any difference to the legal result? On principle surely not, unless a case can be conceived in which that negligence is the proximate cause. The defendant's duty

Delaney, 82 Ill. 198; Vickers v. Atlanta & W. P. R. Co., 64 Ga. 306; St. Louis & S. E. Ry. Co. v. Valirius, 56 Md. 512; McMillan v. B. & M. R. Co., 46 Ia. 231.

There have been cases holding that an infant under seven years of age is conclusively presumed to be without discretion and incapable of negligence, and that between seven and fourteen years of age an infant is, prima facie, incapable of exercising judgement and discretion. Norfolk & P. R. Co. v. Ormsby, 27 Gratt. 455; O'Conner v. Illinois Cent. R. Co., 44 La. Au. 339; 10 So. Rep. 678; Iron Co. v. Brawley (Ala.), 3 So. Rep. 555; Eswin v. St. Louis etc. Ry. Co., 96 Mo. 290; 9 S. W. Rep. 577; Pennsylvania Co. v. James, 81 Pa. St. 194; Kreig v. Wells, 1 E. D. Smith (N. Y.), 76; Hartfield v. Roper, 21 Wend. 615; 34 Am. Dec. 273; Callahan v. Bean, 9 Allen, 401; Mascheck v. St. Louis etc. R. Co., 3 Mo. App. 600; 71 Mo. 276; 2 Am. & Eng. R. Cas. 38; Mackey v. City, 64 Miss. 774; 2 So. Rep. 178; Houston & T. C. Ry. Co. v. Simpson, 60 Tx. 103.

Yet, it seems that all the cases agree that testimony is admissible to show on the contrary, that infants may become responsible for negligence at an earlier age. It may, therefore, be said: "The law fixes no arbitrary period when the immunity of children ceases and the responsibilities of life begin. It would be irrational to hold that a man was responsible for his negligence at twenty-one years of age, and not responsible a day or week prior thereto." Nagle v. Allegheny Valley R. Co., 88 Pa. St. 35. See McGovern v. New York etc. R. Co., 67 N. Y. 417; Wendell v. Id., 91 Id. 420; Stone v. Dry Dock R. Co., 115 Id. 104; Westerfield v. Levi Bros., 43 La. An. 63; 9 So. Rep. 52; Tucker v. New York etc. R. Co., 124 N. Y. 318; 26 N. E. Rep. 916; Westerbrook v. Mobile etc. R. Co., 66 Miss. 560; 6 So. Rep. 321; Western & A. R. Co. v. Young, 81 Ga. 397; 7 S. E. Rep. 94; Kansas P. Ry. Co. v. Whipple, 39 Kan. 531; 18 Pac. Rep. 730; Baker v. Railroad Co., 68 Mich. 90; 35 N. W. Rep. 836; Powers v. Harlow, 53 Mich. 507; 19 N. W. Rep. 257; Cassida v. Navigation Co., 14 Oreg. 551; 13 Pac. Rep. 438; Huff v. Ames, 16 Neb. 139; 19 N. W. Rep. 623.

The late cases hold, almost without exception, that the proprietors of turn-tables, and other dangerous machinery, which is likely to excite the curiosity of children or afford them amusement, are liable for injuries to them, through failure to observe a corresponding degree of care. Schmidt v. Kansas City Distilling Co., 90 Mo. 293; 1 S. W. Rep. 865; Rosenberg v. Durfee, 87 Cal. 545; 26 Pac. Rep. 793; Daniels v. New York etc. R., 154 Mass. 351; 28 N. E. Rep. 283, citing numerous cases; Ft. Worth & D. C. Ry. Co. v. Robertson (Tex.), 16 S. W. Rep. 1093; Barrett v. Southern P. Co., 91 Cal. 296; 27 Pac. Rep. 666; O'Malley v. St. Paul, M. & M. Ry. Co., 43 Minn. 289; 45 N. W. Rep. 440; Ilwaco Ry. & Nav. Co. v.

can be measured by his notice of special risk and his means of avoiding it; there is no reason for making it vary with the diligence or negligence of a third person in giving occasion for the risk to exist. If the defendant is so negligent that an adult in the plaintiff's position could not have saved himself by reasonable care, he is liable. If he is aware of the plaintiff's helplessness, and fails to use such special precaution as is reasonably possible, then also, we submit, he is liable. If he did not know, and could not with ordinary diligence have known, the plaintiff to be incapable of taking care of himself (f), and has used such diligence as would be sufficient towards an adult; or if, being aware of the danger, he did use such additional caution as he reasonably could; or if the facts were such that no additional caution was practicable, and there is no evidence of negligence according to the ordinary standard (g), then the defendant is not liable.

No English decision has been met with that goes the length of depriving a child of redress on the ground that a third person negligently allowed it to go alone (h). In America there have been such decisions in Massachusetts (i), New York, and elsewhere: " but there are as many decisions to the contrary" (j): and it is submitted

(f) This might happen in various ways, by reason of darkness or otherwise.

(g) Singleton v. E. C. R. Co. (1889), 7 C. B. N. S. 287, is a case of this kind, as it was decided not on the fiction of imputing a third person's negligence to a child, but on the ground (whether rightly taken or not) that there was no evidence of negligence at all.

(h) Mangan v. Atterton (1886), L. R. 1 Ex. 239, 35 L. J. Ex. 161, comes near it.

But that case went partly on the ground of the damage being too remote, and since Clark v. Chambers (1878), 3 Q. B. D. 327, 47 L. J. Q. B. 427, supra, p. 48, it is of doubtful authority. For our own part we think it is not law.

(i) Holmes, The Common Law, 128.

(j) Bigelow L. C. 729, and see Horace Smith, 241. In Vermont (Robinson v. Cone, 22 Vt. 213, 224, ap. Cooley on Torts, 681), the view maintained in the text is distinctly taken. "We are satisfied that,

Hedrick, 1 Wash. St. 446; 25 Pac. Rep. 335; Gavin v. Chicago, 97 Ill. 66; Bay Shore R. Co. v. Harris, 67 Ala. 6; McGreary v. Eastern R. Co., 135 Mass. 363; 15 Am. & Eng. R. Cas. 407; Fisk v. Missouri Furnace Co., 10 Mo. App. 62.

that both on principle and according to the latest authority of the highest tribunals in both countries they are right.

Child v. Hearn. In one peculiar case (k) the now exploded doctrine of "identification" (1) was brought in, gratuitously as it would seem. The plaintiff was a platelayer working on a railway; the railway company was by statute bound to maintain a fence to prevent animals (m) from straying off the adjoining land; the defendant was an adjacent owner who kept pigs. The fence was insufficient to keep out pigs (n). Some pigs of the defendant's found their way on to the line, it did not appear how, and upset a trolly worked by hand on which the plaintiff and others were riding back from their work. The plaintiff's case appears to be bad on one or both of two grounds; there was no proof of actual negligence on the defendant's part, and even if his commonlaw duty to fence was not altogether superseded, as regards that boundary, by the Act casting the duty on the railway company, he was entitled to assume that the company would perform their duty; and also the damage was too remote (o). But the ground actually taken was "that the servant can be in no better position than the master when he is using the master's property for the master's purposes," or "the plaintiff is identified with the land which he was using for

although a child or idiot or lunatic may to some extent have escaped into the highway, through the fault or negligence of his keeper, and so be improp. erly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know that such a person is on the highway, or on a railway, he is bound to a proportionate degree of watchfulness, and what would be but ordinary neglect in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger." So, too, Bigelow 730.

(k) Child v. Hearn (1874), L. R. 9 Ex. 176, 43 L. J. Ex. 100.

(1) P. 580, above.

(m) "Cattle," held by the court to include pigs.

(n) That is, pigs of average vigour and obstinacy; see per Bramwell B., whose judgment (pp. 181, 182), is almost a caricature of the general idea of the “ reasonable man." It was alleged, but not found as a fact, that the defendant had previously been warned by some one of his pigs being ont he line.

(0) Note in Addison on Torts, 5th ed. 27.