I concur with Mr. Justice POTTER except in his ruling that the question of plaintiff's contributory negligence was for the jury.
Regardless of the general principles governing care required of children and the weight and conflict of authority as to the age at which a child may be charged with contributory negligence (45 C. J. p. 1002), it is settled law of this State that a child under 6 years of age cannot be so charged.Johnson v. City of Bay City, 164 Mich. 251 (Ann. Cas. 1912B, 866), where the child was 5 years, 4 months old; Love v.Railroad Co., 170 Mich. 1, the child being 5 years and 5 months of age; Beno v. Kloka, 211 Mich. 116, where the child was 5 years and 11 months of age, 3 months older than plaintiff here, and his alleged negligence was similar to that charged against plaintiff.
Upon this point the opinion of Mr. Justice POTTER cannot prevail without overruling these cases. The circuit court properly held, as a matter of law, that, because of her age, plaintiff was not guilty of contributory negligence.
NORTH, C.J., and FELLOWS and McDONALD, JJ., concurred with FEAD, J. *Page 139