I concur in the judgment of reversal — but not in all that is said in the foregoing opinion. I think that the court below erred in the twelfth instruction by not distinguishing between a minor and a mature person, with regard to the care, prudence, and judgment which each is required to exercise; and that the instructions, as a whole, do not keep that distinction in view. If the death of the deceased was caused by his own negligence, the plaintiff cannot recover; and, of course, a minor can be guilty of contributory negligence. (Killelea v. CaliforniaHorseshoe Co., 140 Cal. 602.) "Children, as well as adults, should use the prudence and discretion which persons of their age ordinarily have, and they cannot be permitted with impunity to indulge in conduct which they know, or ought to know, to be careless. The law imposes upon minors the duty of giving such attention to their surroundings and care to avoid danger as may fairly and reasonably be expected from persons of their age and capacity." (Studer v. Southern Pacific Co., 121 Cal. 404.1) But a jury, in determining whether or not a person, under given circumstances, exercised reasonable care, should consider whether such person was an adult or a minor; and if the latter, whether he exercised such judgment, prudence, and care — considering his age and intelligence — as could reasonably be expected of him. It is error, however, to put, by a general rule, a minor and an adult in the same class with respect to prudence and judgment, as was done in the case at bar.
1 66 Am. St. Rep. 39. *Page 62