By the Court.
Lumpkin, J.delivering the opinion.
It is said that the verdict in this case, cannot be justified on legal principles, and so the presiding .fudge seemed to think. That if the jury found for the plaintiff, they were bound to find a larger sum. Is this so?
There was a principle referred to in the case of the Wynn girl, against the Macon and Western Rail Road Co., decided at the July Term, 1858, of this Court, at this place, which *362we hold to be sound law — although, we did not think it applied to the facts of that case, where both parties are in fault, but the defendant most so; the fault of the plaintiff may go in mitigation of damages. Suppose the jury, in this case, came to the conclusion that both parties were in fault, but the defendant slightly more so, so as to give the. plaintiff a cause of action; in such case, but small damages would be awarded. This obvious rule seems to have been overlooked by Lord Campbell, in a recent trial in England, if the newspaper report of it be reliable, who, because a jury returned a verdict of one farthing damages, and adhered to it, reminded them of the ancient privilege of the Court, to keep them confined till the end of the Term, and then cart them to the boundary line of the county, and have them tumbled into a ditch.
We doubt not, however, that the jury thought of this transaction as we do; that the fault was wholly on the part of this wild and wayward girl. A heavy rain was impending, and the dray of the defendant having flour and meal on board, was hurrying at a rapid trot, to escape. The street was some two hundred feet wide. The little girl ran out forty-nine feet from the side-walk; passed in front of the dray, just clearing the heads of the mules; the movement was voluntary and intentional; it was in proof by the plaintiff’s own witnesses, (the defendant introduced none,) that she was in the habit of doing these things; that the fact had been communicated to her parents, and they had been warned, that if they did not restrain her, she would be hurt; the next that was seen of her she was down between the front and hind wheels of the dray, on the opposite side from the one from which she approached the vehicle ; and the hind wheel ran over her, inflicting a considerable injury upon her head and body; how she came there does not appear; whether she was attempting to get into the dray, or swing to it, or what, we cannot tell.
Can persons throw themselves across a rail-road track, *363or under a dray, and expect to recover, because they are hurt? Still the jury saw fit to give $50, and the defendant acquiesces. Can the other side complain for getting more than they are entitled to ?
The conduct of children must be controlled; the failure to do this, is the curse and ruin of this country, and if parents will not do it, it is a misfortune that the lesson has to be enforced by such catastrophes as the present.
Judgment reversed.