Jett, William S., Jr.

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University of Kentucky

Kentucky Law JournalVolume 23 | Issue 2 Article 111935Torts--Infants Contributory NegligenceWilliam S. Jett Jr.University of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Torts CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationJett, William S. Jr. (1935) "Torts--Infants Contributory Negligence," Kentucky Law Journal: Vol. 23 : Iss. 2 , Article 11.Available at: https://uknowledge.uky.edu/klj/vol23/iss2/11KENTUCKY LAW JouRNALTORTS-INFANTS CONTRIBUTORY NEGLIGENCE.In the field of tort liability of infants, the courts recognize threeviews as to the possibility of an infant being guilty of contributorynegligence. The first, that an infant cannot be contributorily negligent.Lynch v. Nurdin, 1 Q. B. 29 (1841); Harold and another v. Watney,2 Q. B. 340 (1898). This view is practically obsolete and is generallyno longer followed, except in part, by those states which hold that anInfant below a certain age, generally six, cannot be guilty of con-tributory negligence as a matter of law; however, after an infantpasses such age the presumption of non-liability is rebuttable.The second view is that an infant may be guilty of contributorynegligence the same as an adult. Veal v. Gillett, 23 Conn. 437 (1850);Burke v. Broadway, Etc., By. Co., 49 Barb. (N. Y.) 529 (1867). A fewearly decisions laid down; this rigid rule. The rule, however, as canbe readily seen, is inherently bad, and the above courts no longerfollow it. Boland v. Conn. Co., 83 Conn. 456, 76 Atl. 1005 (1910); Hinev. A. D. Co., 250 N. Y. 75 (1931).The third view is that an infant may or may not be" guilty ofcontributory negligence, depending upon the age, capacity, discretion,knowledge and experience of the particular infant who has beencharged by the defendant as being contributorily negligent. This lastview is followed in a large number of the states. Birmingham, Etc.,By. Co. v. Mattison, 166 Ala. 602, 52 So. 49 (1909); Richardson v. ElPaso Consol. Gold Mining Co., 51 Col. 440, 118 Pac. 982 (1911); Bolandv. Conn. Co., 83 Conn. 456, 76 Atl. 1005 (1910); Barstow v. Capital Trac-'tion Co., 29 App. (D. C.) 362 (1907); Central, Etc., Co. v. Rylee, 87Ga. 49, 13 S. E. 584 (1891); McEldon v. Drew, 138 loiva 390, 128Am. St. Rep. 203 (1908); Seifert v. Schaible, 81 Kan. 323, 105 Pac. 529(1909); Berdos v. Tremont and Suffolk Mils, 209 Mass. 489, 95 N. E.876 (1911); United R. and Elec. Go. v. Carneal, 110 Md. 211, 72 Atl.771 (1909); Meserve v. Libby, 115 Me. 282, 98 Atl. 754 (1916); Robertsv. Ring, 173 N. W. 437, (Minn. 1919); Stanley v. C. M. and St. By. Co.,112 Mo. App. 601, 87 8. W. 112 (1905); Ritscher v. 0. and P. V. R., 79N. J. L. 462, 75 Atl. 209 (1910); Karpeles v. Heine, 227 N. Y. 74, 124N. E. 101 (1919); Chi. Rock Is. and Pac. By. Co. v. Wright, 161 Pac.1070 (Okla., 1916); Edwards v. Chi., Etc., By. Co., 21 S. D. 504, 110N. W. 832. (1907); Thomas v. Oregon Short Line By. Go., 47 Utah 894,154 Pac. 777 (1916); Prunty v. Tyler Traction Co., 110 S. E. 570(W. Va., 1922). [For comments on above cases see 22 Mich. Law Rev.160; 32 H. L. R. 434; 29 Yale Law Journal 684; 8 Minn. Law Rev. 73,and in the Federal courts, Leach v. St. Louis and San Francisco By.Co., 48 Fed. (2d) 722 (1931).]The age at which an infant is responsible under the criminal lawis fairly well settled. Below the age of seven he is incapable of form-ing a criminal intent. Between the ages of seven and fourteen thereis a rebuttable presumption of incapacity. Clark and Marshall, See. 72.The- reasons for these rigid rules of the criminal law are to a largeextent historical and have their origin in the reaction from the ex-STUDENT NOTEStreme severity of the criminal law of the times. The liability of in-fants for torts is not analogous to the liability of infants for crimes.The courts make no attempt arbitrarily to set an age limit with respectto an infant's liability for torts except that some states deny liabilityfor contributory negligence of very young children. This distinctionbetween the civil and criminal law, viz., the one setting an age limitwhile the other does not, is sound, because, although in the field ofcriminal law there may be exceptional children yet it is the goodpolicy of the state to discountenance the prosecution of children, andto attempt to check their criminal propensities in other ways. How-ever, no such consideration operates in a purely private tort betweentwo individuals where the equities of the parties are to be adjusted,and here exceptional children should be considered.With respect to infants a number of the courts hold as a matterof law, that very young children are incapable of contributory negli-gence. Parra v. Cleaver (Cal. App.) 294 Pac. 6 (1930); Rjan v.Louisana By. Co., 83 So. 371 (1919). Some authorities hold that thisrule applies to all children under seven years of age, Chicago City Ry.Co. v. Twoy, 196 Ill. 410, 63 N. E. 997 (1902); Ill. Cent. Ry. Co. v.Hernigan, 198 Ill. 297, 65 N. E. 88 (1902), and that children betweenthe ages of seven and fourteen are presumably incapable of contribu-tory negligence, but that the contrary may be shown. Mayor, Etc., ofVielcsburg v. McLain, 67 Miss. 4, 6 So. 774 (1889); Lynchburg CottonMills v. Stanley, 102 Va. 590, 46 S. E. 909 (1904), Cooley on Torts(3 ed.) 1470. A great number of states on the other hand hold thatinfants may be guilty of contributory negligence, and whether theyare guilty or not depends upon age, experience, ability, and degreeof development. It was held in North Carolina that a child should notbe chargeable with the same degree of care as an experienced adult.Tart v. So. By. Co., 202 N. C. 52, 161 S. E. 720 (1932). This is a ques-tion for the jury in determining whether the infant was guilty ofcontributory negligence, assuming that an infant may be guilty of con-tributory negligence in that particular jurisdiction. It was so heldin a recent case involving a three and one-half year old child. Hine v.A. D. Co., 250 N. Y. 75, 232 App: Div. 359 (1931).In a late North Carolina case the complaint alleged that the plain-tiff's intestate, a boy of twelve years, was struck and killed by thedefendant's freight train, while walking along a well defined pathwhich path crossed defendant's railroad track. It was further allegedthat the train was being negligently operated by defendant's em-ployee at the time. The defense was contributory negligence. Thecourt said that the method for determining whether a child is con-tributorily negligent, consists in discovering whether it acted as achild of its age, capacity, discretion, knowledge and experience wouldhave acted under similar circumstances. Candle v. Seaboard Air LineRy. Ca., 202 N. C. 404, 163 S. . 122 (1932). This method is appliedin a great number of states and is perhaps as near a logical test asany in dealing with this problem. Although we must admit that chil-K. L. J.-13KENTUCKY LAW JOURNALdren generally have not enough intelligence and discretion to war-rant holding them for their actions, yet a particular infant in any onesituation may have sufficient mental capacity, and it should always beopen to the defendant to prove this regardless of the plaintiff's age.Not to afford him such a defense would work an injustice. The de-fendant needs but prove that the infant was cognizant of the im-mediate consequences of his act, and that the consequences are ordi-narily sufficient to deter a person of. his age and mental developmentfrom doing the act. If the infant does such act as makes-him capableof contributory negligence, then he should be held accountable.A recent case states the rule, that an infant is guilty of con-tributory negligence if an ordinarily prudent child of the samecapacity, age, experience, and ability would have known and appreci-ated the danger and risk under similar circumstances. Turner v. Cityof Moberly, 26 S. W. (2d) 99? (Mo., 1930). This test is in harmonywith the accepted principles of the law of negligence, and requiresevery child to exercise the degree of care which he is capable of using.It is a psychological rather than a chronological test, and is subjective.At common law proof of contributory negligence of an adult plaintiffwas an absolute bar to any action for negligence he might bringagainst his wrongdoer. There is apparently no sound reason whythe same test should not apply in the case of an infant after the de-fendant has shown that the infant was contributorily negligent.The general rule is that the burden" of proof, in setting up thecontributory negligence of the plaintiff, Is on the defendant when theplaintiff is an adult. This is true in a great number of the state juris-dictions, Cooley on Torts (3rd ed.) 1340, and in the Federal courts,Leach v. St. Louis and Zan Francisco By. Co., 48 Fed. (2d) 722 (1931).Kentucky is in accord with those jurisdictions which hold thatan infant under the age of seven cannot be guilty of contributorynegligence as a matter of law. Kentucky also holds that one betweenthe ages of seven and fourteen may or may not be guilty of it, de-pending on his mental development and other circumstances. Ttp-man's Admr. v. Schmidt, 200 Ky. 88, 254 S. W. 199 (1923). It hasfurther been decreed that an infant five years of age cannot be guiltyof contributory negligence by falling in a hole in the sidewalk, evenif negligence on the part of the infant be shown. City of Newport v.Lewis, 155 Ky. 832, 160 S. W. 507 (1913).Although under the Kentucky view there is a presumption thatan infant between the ages of seven and fourteen cannot be guilty ofcontributory negligence, still this presumption is rebuttable, and forthe purpose of rebutting it, the Kentucky courts apparently apply thesame test in the case of infants over seven years of age as is appliedby a great number of the courts to all infants under a subjective testof their mental development. The Kentucky test applied to infantsover seven years of age is as follows: Infants over seven years of ageare required to use only that degree of care which persons of like age,capacity and experience might be reasonably expected naturally andordinarily to use under like circumstances. Macon v. M. and P. 1?. Co.,STUDENT NOTES110 Ky. 680, 62 S. W. 496 (1901); Owensboro v. York, 117 Ky. 294, 77S. W. 1130 (1904); Davis, Admr. v. Ohio Valley Banking Co., 127 Ky.800, 106 S. W. 843 (1908); Collett's Guardian v. Standard Oil Co., 186Ky. 142, 216 S. W. 356 (1919); Ham v. Hoard, 189 Ky. 317, 224 S. W.868 (1920).It is to be appreciated that a jury must indeed find itself in apredicament in applying the subjective test in order to reach a de-cision after having heard all the evidence. The reason is obvious.Under the foregoing test as it is stated an infant is required to useonly that degree of care which would ordinarily be used by a childof its age, capacity and experience under similar circumstances. Thisindefinite test places the burden on the jury to determine whether itacted as such. Query, assuming the facts of the case to be clear, howis a jury with nothing definite on which to work (unless one wouldsay that the psychological aspect of an Infant toward a certain setof facts is definite) to go about determining whether or not a par-ticular infant acted as an ordinary child of its age, capacity and ex-perience would have acted under similar circumstances?WHLIAM S. JETT, JR.CRIMEs--TnE RIGHT OF AN OFFICER TO ARREST WITHOUT A WARRANT.In a recent Texas case the court held that an arrest by an officerwithout a warrant was illegal where the evidence did not show thatthe defendant was about to escape or would escape if time were takento secure a warrant, even though the officer had reasonable grounds tobelieve the defendant was guilty of the felony committed A briefstatement of the facts will show that the arrest would have been legalhad not the Texas statute, which governed this case, included theclause, "it must appear that the accused was about to escape." Thedeceased was found dead at his filling station about six o'clock A. M.with a shotgun wound in his body. The defendant had been seen atthe filling station carrying a shotgun late that same afternoon. Freshtracks in the snow led from the filling station to the defendant's homewhere he was arrested less than an hour after the killing. Accordingto the arresting officer's testimony, he told the defendant that he wasmaking an investigation and thought that he (the defendant) mightbe able to give him some information. When asked if he had heardany shots the defendant answered in the negative and, after hesitatinga moment, said, "That old man was a kind old man; I was down there'at two o'clock but haven't been back since." The defendant apparentlymade these statements without being advised of the killing. Theofficer Immediately arrested the defendant without a warrant as hewas then seven miles from the county seat, the only place where hecould have secured a warrant.1 Rippy v. State (Texas), 53 S. W. (2nd) 619 (1931).

Torts--Infants Contributory Negligence

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Torts--Infants Contributory Negligence

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