The plaintiff claimed to have proved that the injuries to the decedent resulted from the failure of the motorman to keep a proper lookout, to have his car under proper control, to give warning of the approach of the car, and to drop his fender when danger of collision threatened.
The decedent was a child of immature years. The court instructed the jury that it "was not his [the motorman's] duty in the absence of special circumstances, which do not appear in this case, to keep a more vigilant watch for children than for adults, since in the nature of things his lookout must be for all legitimate users of the street alike. It was only after the actual presence of the plaintiff's intestate in danger or about to go into danger was seen or ought to have been seen by him, that his duty to him, plaintiff's intestate, was greater than it would have been to adults." This was error.
The special circumstances do appear: a congested and populous neighborhood, composed mainly along this street of dwelling-houses and a traveled way thirty-eight feet wide. It was the motorman's duty to keep in mind the populous character of the street, the residential character of the neighborhood, the likelihood of children being in the street and of their crossing from one side to the other, and to bear in mind the characteristics of young children in respect to their nonappreciation of danger; and therefore reasonable care by him at this place would mean the operation of his car with greater care to avoid injury to children than if they were adults able to better held themselves.DiMaio v. Yolen Bottling Works, 93 Conn. 597,107 A. 497. The motorman's duty was to operate his car in this locality in the expectancy of children being upon this street and upon the railroad track; his duty in this particular was to anticipate the danger. His *Page 525 duty never varied. It did not rest dormant until he saw, or ought to have seen, a child in danger or about to go into danger.
The verdict of the jury, taken in connection with the claims of the parties of evidence proved, would indicate that the question of contributory negligence was the decisive factor in the verdict. If this be so, the importance of the instruction upon the issue of the boy's own negligent conduct is great. A part of the instruction was this: "Again, the plaintiff's intestate if only five years and eight months old was bound to use such care as reasonably prudent boys of his age under similar circumstances would have used. . . . If . . . you do not find that he acted as a reasonably prudent boy of his age ordinarily would have acted in going upon the track when he did, and that his act in so doing was the material contributing cause of the accident, then your verdict should be for the defendant." This instruction differs from our rule of reasonable care for the immature child. We merely require him to use such judgment and experience as children of similar age, judgment and experience would use under the circumstances. "Ordinary or reasonable care, as applied to a young child, means such care as may reasonably be expected of children of similar age, judgment and experience, under the circumstances." DiMaio v.Yolen Bottling Works, 93 Conn. 597, 600, 107 A. 497;Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693,58 A. 5; Kishalaski v. Sullivan, 94 Conn. 196,108 A. 538.
The court was also in error in charging that "if you believe from the evidence that plaintiff's intestate . . . knew that trolley-cars ran frequently through Congress Avenue, and knew that it was dangerous . . . and, notwithstanding, without looking or taking other precautions to see whether one might be coming, rode *Page 526 out suddenly from the sidewalk upon the track immediately in front of a car so that he was instantly struck after reaching the track, and that such conduct was the proximate cause of his injury, your verdict should be then under such facts for the defendant." The court in this instruction makes the contributory negligence of the boy determinable by the knowledge he then possessed. Knowledge of the child is one consideration in ascertaining whether he has been guilty of contributory negligence, but it is not the controlling element. The judgment of the boy — that is, his discretion to heed and his power of self-control — is the predominant element. Brennan v. Fair Haven W.R. Co., 45 Conn. 284, 298; Rohloff v. Fair Haven W.R. Co., 76 Conn. 689, 693, 58 A. 5; Birge v. Gardner,19 Conn. 507, 512.
The court further charged: "I do not think a motorman is under ordinary circumstances bound in the exercise of ordinary caution and prudence to anticipate that a pedestrian, either adult or child, will suddenly attempt to cross in the middle of a block on a tricycle or velocipede, without at least giving some proper heed and caution to the possibility of being caught by an approaching trolley-car under such circumstances." This instruction, as well as the latter part of the preceding instruction as applied to a child of immature years, is erroneous. Such conduct cannot be said as matter of law to be negligent. "Such conduct may be evidence of contributory negligence in a child as described [age six], but not necessarily conclusive."Murphy v. Derby Street Ry. Co., 73 Conn. 249,254, 47 A. 120. The instruction as given would relieve the motorman, in the situation which the plaintiff claimed this case presented, of the duty of keeping a lookout and of determining when he saw the boy taking his tricycle from the curb and placing it in the *Page 527 gutter that he was probably about to follow his mother and cross the street. Yet this was the reasonable conclusion to draw if the facts were as the plaintiff claims them.
The further instruction: "Again, if you find that the proximate cause of the accident was the act of the plaintiff's intestate in riding directly in front of the car, when he was so near that it was impossible for the motorman in the exercise of reasonable care to avoid striking him, the plaintiff cannot recover," — is another instance where the court is applying to the child the rule for the adult. The jury ought not to be asked to pass upon the question of the contributory negligence of the child, without having presented to them the rule to which we have referred, by which this is to be found; and because this question could only be decided by consideration of the age, maturity, intelligence, experience and judgment of the child in the light of the circumstances present, it was one for the jury.Kishalaski v. Sullivan, 94 Conn. 196, 108 A. 538.
The court instructed the jury that, "in an emergency when the motorman has but a second or two to act, the reasonableness of his conduct is to be judged under the circumstances as they appear to him at the time." His conduct is not to be judged as the circumstances appeared to him, for he may not have acted as the reasonably prudent man in seeing, knowing and appreciating them, but as they ought to have appeared to him in the exercise of reasonable care.
The instruction upon the element of speed is one of the strenuously urged claims of error. The court followed defendant's requests to charge, which, read as a whole, resolve themselves to this: "What is a reasonable speed for a street-car depends upon all the surrounding circumstances. . . . It is only when the speed is so great as to cause unreasonable and unnecessary *Page 528 danger to other users of the highway who are themselves taking reasonable care, that it could be said to be negligence." This was correct, and sufficiently plain and definite to be capable of being understood and applied by the jury. The request of the defendant that "mere evidence of high speed, and of high speed alone, is not evidence of negligence," should not have been given; not because it is a wrong theoretical statement, but because it is an impractical proposition to put before a jury. Speed is always associated with other circumstances, and it should be so presented to the jury when made the subject of discussion in a charge.
The court charged in the language of defendant's request: "If you find that the car was being operated at a rate of speed excessive under the circumstances . . . , plaintiff cannot recover unless he proves by a fair preponderance of the evidence that this excessive speed, lack of lookout and lack of warning, was the proximate cause of accident." The "and" before "lack of warning" was probably intended to be "or." Other parts of the charge make this clear. The instruction is also open to the criticism made, that it excludes one of the elements of negligence relied upon by the plaintiff, the failure to drop the fender.
Assignment of error for failure to charge on the subject of wantonness, in connection with the subject of contributory negligence, is not well taken. The case did not present the elements upon which to base such a claim, and the record does not show that such claim was made in the trial court.
It is significant that the only parts of the charge which are claimed to be erroneous, are eleven of the requests to charge which the court incorporated in its charge.
The five assignments of error in the rejection of *Page 529 evidence, which are pursued, are for the exclusion of alleged leading questions. It will rarely happen that prejudicial error will be found upon such assignments of error. Counsel can readily, and should, avoid the objection. The record indicates unnecessary objections, somewhat too stringent ruling in the exclusion of such questions, and an unwillingness on the part of counsel to change the form of his question in accordance with the ruling.
There is error, the judgment is set aside and a new trial ordered.
In this opinion the other judges concurred.