The demurrers to the complaint, original and amended, were properly overruled. The action corresponds to the common law action of trespass on the case, for the recovery of damages for personal injuries sustained by the plaintiff, in consequence of the negligence of the defendant and its servants. The injury the plaintiff suffered — the manner in which it was produced, and the negligence imputed to the defendant as its cause, are stated with sufficient certainty. The allegation that the injury happened in consequence of the negligence of the defendant, implies that there was no negligence on the part of the plaintiff contributing to it. It was not necessary to aver specially that the plaintiff was in the exercise of reasonable care, or without fault, when the injury occurred. If on the evidence it appeared he was not, and the injury was attributable either wholly or in part, directly to such want of care, it was available to the defendant under the general issue. Steele v. Burkhardt, 104 Mass. 59. Nor is the complaint demurrable, if it is conceded that some of the averments of special damage embrace causes for which he cannot recover, while other averments embrace causes for which he may recover. The averments of such causes could be stricken from the complaint, and it would still disclose a good cause of action. These averments are therefore mei’e surplusage, not affecting the sufficiency of the complaint. Perry v. Marsh, 25 Ala. 659.
*77The questions whether the defendant had been guilty of the negligence alleged, and whether that negligence caused the injury of which the plaintiff complained, were properly submitted to the jury. No objection is made to the instructions given by the court on this question. The errors assigned refer principally to the instructions given, or refused, respecting the negligence of the plaintiff himself, or of his parents, supposed to have contributed to the injury he sustained.
The general principle, that although a defendant has been guilty of culpable fault or negligence, producing an injury, yet, if his act was not wanton and intentional, and if the plaintiff by his own misconduct or negligence amounting to a want of ordinary care, essentially contributed to produce the result, he cannot recover, is not controverted. The principle is applicable in all cases, where injuries to persons or property form the subject of inquiry. The reason on which it rests, as stated by Mr. Wharton, is, “that by the interposition of the plaintiff’s independent will, the ca'sual connection between the defendant’s negligence and the injury is broken.” Law of Negligence, § 300. In the adjudged cases, the reason most frequently assigned, is, that were the law otherwise, a plaintiff might compel compensation for his own wrong; and, being in fault, it is not possible to ascertain what proportion his fault bore to the fault of the defendant, or whether without his fault, injury would have been produced. Adopting either form of expressing the reason, involves that the plaintiff is capable of volition — capable of legal wi'ong. The principle is therefore accepted with the qualification, that the plaintiff to whom it is applied, is capable of an independent will — " f legal wrong. Wharton, Law of Negligence, § 301. When the act or omission attributed to the plaintiff as contributing with the negligence of the defendant, in causing the injury, is the result of compulsion forced upon the plaintiff, it will not be viewed as the act or omission of an independent will, debarring him from redress for the damage he may sustain. Ib. § 89. If a man under a sense of superior duty, so instantaneous, and of such a high and absorbing nature, as for the time renders him unconscious of impending danger, should' voluntarily expose himself to it, contributory negligence will not be imputed to him. In such case, the defendant must be regarded as the real and only author of the injury which may ensue. His want of ordinary care invoked the peril, giving rise to the high duty which must be discharged, even though it possibly involved the loss of life or limb to the plaintiff. The illustration is found in a recent case: Eckert v. L. I. R. R. Co., *7843 N. Y. (4 Hand) 502. A man saw a little child three or four years of age, sitting or standing upon a railroad track, and a train of cars rapidly approaching. Seeing the child was in immediate danger of being crushed by the train, he ran to it, and seizing it, threw it clear of the track, on the opposite side from which he came, but continuing across the track himself he was stricken down by the locomotive or tender, and died in a few hours from the injuries he received. In an action by his administrator, against the railroad company, it was insisted the deceased had voluntarily placed himself in the position in which he received the injury producing his death, and thereby contributed to it. It was held by the court, that under the circumstances it was the duty of the deceased to exercise his judgment as to whether he could probably save the child without serious injury to himself. If, from the appearances he believed he could, it was not negligence to attempt to do so, although believing that possibly he might fail, and receive injury himself. Wharton, Law of Negligence, § 308. A passenger, placed in a state of peril, by a carriel’s want of proper skill or care, having reasonable apprehension of immediate injury, leaps from a coach, though he thereby increases the peril, or causes the coach to upset, may recover for the injuries he suffers. It was the carrier’s fault that placed him in the peril, presenting as the only alternative of escaping injury, the leaping from the coach, and he would be in effect availing himself of his own wrong, if permitted to say, if the plaintiff had remained in the coach, the injury would not have occurred at all, or would have been less serious. Stokes v. Saltonstall, 13 Pet. 181; Wharton, Law of Negligence, § 93. There are many cases oi self-injury done in fright, or by persons acting precipitately, under sudden excitement, to which this general principle of concurring or contributory negligence has not been applied, to relieve from liability the author of the fright, or the excitement, though in its absence the principle would be applicable in its full force. Wharton, Law of Negligence, §§ 94, 95, 377. They rest on the principle that the plaintiff by the act of the defendant was temporarily irresponsible. For a like reason, persons deprived of their senses, as the deaf or blind, and persons of unsound mind, are without the operation of the principle. Ib. § 306, 7.
It would seem to follow, that a child under the age of seven years, should be absolutely exempt from the operation of the principle. Thought, discretion, judgment or will cannot be legally imputable to him — he cannot be adjudged guilty and punished for crime. Bishop Crim. Law, § 461, *79Not having an “independent will” — incapable of choosing between the right and the wrong, between care and rashness, the creature of instinct and impulse, there is no ground on which to base negligence. From him duties to others are not exacted, while duties to him are recognized and compulsorily enforced. Negligence has the same significance, whether applied to a defendant as creating a cause of action, or to a plaintiff in bar of an action for a redress of injuries. It is a breach of the duty owing by the one to the other, under the circumstances existing when an injury occurs. A defendant may be guilty of negligence, and of consequence a breach of duty. He who is subject to be affected by it, owes the duty of reasonable care, to avoid injury from it. If the public highway is negligently obstructed by one, another who is in its use may not cast himself on such obstructions, and recover damages from him who placed them there. Nor can he recover, if riding with great violence, and without ordinary care, he is injured by coming in contact with them. The law imposes on him the duty of using common and ordinary care to be in the right. Says Lord ELLENBOKOUGH : “one person being in fault will not dispense with another using ordinary care for himself.” Butterfield v. Forrester, 11 East 60. The party guilty of such obstructions could not exact from the blind man, who has been accustomed to pass the highway without danger and injury, care and diligence to avoid them. If to him injury ensued, it could not be an answer that they could have been seen, and easily passed around. Avoiding them by sight, is not a duty he can exact from the blind. Nor could he demand from the person of unsound mind, who is in the lawful use of the highway, any care in avoiding them. The duty rests only on him who is capable of appreciating, and avoiding injury from them. A child below the age of seven years, irresponsible, incapable of discretion, could as well be subjected to liability for negligence, as to permit one fully sui juris, by the imputation of negligence, to escape the responsibility of his own wrongful act. The child owes to him no duty, because incapable of performing it. Such is the doctrine of cases determined in courts of the highest authority.
The case of Lynch v. Nerdin, 1 Ad. and Ell. 28, (41 Eng. Com. Law, 422), has been doubted in England, but has never been overruled, and has been accepted as a very just and sound exposition of the law by the courts generally of this country. The facts were that the defendant negligently left his horse and cart unattended in the street. The plaintiff, a child about seven years of age, got upon the cart in *80play; another child incautiously led the horse on, and the plaintiff fell, was run over by the wheel and his leg broken. Though the plaintiff would, if of years of discretion, have been a trespasser in getting upon the cart, and though his wrongful act contributed to the injury he received, he was allowed to recover. The real cause of his injury was-not his pursuing the natural instinct of a child, in amusing himself with the empty cart and abandoned horse, but it was the negligence of the defendant in leaving his horse and cart unattended on the public street. A recent case in Minnesota, reported in the 11th number of the “Central Law Journal,” for the present year, is an illustration of the doctrine. A railway company built near its depot, in a small town, a turn-table, for the purpose of turning its engines. It was left unlocked and unguarded, and children were in the habit of playing upon it. While so playing with other children, the plaintiff, an infant about seven years of age, was injured, and it was held he was entitled to recover damages of the company. Their negligence in leaving the table unguarded and unlocked, so that children not conscious of the dangers they incurred, would be tempted to play with and on it, relieved the plaintiff from being regarded as a trespasser or contributing to his injury. Keep v. Milwaukee and Saint Paul Railway Company. True, this decision seems to proceed on the hypothesis, that the plaintiff, a mere child, was lured by the defendant into the playing with the table, but it really rests on the plaintiff’s want of volition and discretion. In Key v. Penn. R. R. Co., 65 Pa. 269, a child, nineteen months old, crawled on the track of a railroad, on the premises of the company, and was injured by a train passing. Actual negligence of the company, or its servants, being shown, the incapacity of the child to know and avoid danger, was declared to shield it from responsibility for contributory negligence. In Whirley v. Whitman, 1 Head, (Tenn.) 610, a child, three or four years of age, going on the unenclosed premises of the defendant, and sustaining injury by meddling with machinery left unguarded, was declared entitled to recovery for injuries he sustained. The court accepting Lord DENMAN’S definition of ordinary care, that it “must mean that degree of care which may reasonably be expected from a person in the plaintiff’s situation,” say, “to exact of the plaintiff a degree of caution and prudence, which he could not possibly be possessed of, would be an absurdity.” The supreme court of the United States have maintained this doctrine to the full extent necessary to support the plaintiff’s action. R. R. Co. v. Gladmon, 15 Wall. 401; R. R. Co. v. *81Stout, 17 Wall. 660. And while there is some conflict in the authorities, it seems to us it should be regarded as set-tied by the weight of authority in this country, that when a child of tender years, to whom judgment and discretion cannot be imputed, but who is conclusively presumed incapable of their exercise, is injured by the negligence of an adult, that contributory negligence shall not be considered as available in defence of his right to redress. Wharton, Law of Negligence, §§ 309-10.
When the injury occurred, the plaintiff was three or four years of age — was attended by his brother but a year or two older. The place of the injury was one of the ancient and principal streets of the city of Mobile, which this court near forty years ago, declared the municipal authorities of the city could not, without the sanction of the legislative power of the State, obstruct, or render less commodious to the free passage of the citizen, by the erection of a market for public use and convenience. State v. Mayor and Aldermen, 5 Port. 279. In the language of the common law, it is the Ring’s higlmay — a thoroughfare, a public passage for the King and all his subjects. The individual right of every citizen, no matter of what age or sex; whether sane or insane, lame or halt, blind, deaf or dumb; to pass and repass on this highway is of the same nature as his dominion over his own premises. So long as it is used as a highway, without prejudice to the right of others to a similar use, the right of use is absolute and unqualified. The easement the defendant enjoyed was subordinate to this paramount right of the citizen, and must have been used, so as to narrow and circumscribe it as little as possible. The plaintiff was lawfully on this highway — lawfully on that part of it devoted to the crossing of those on foot from the one side to the other. His presence there, in such use as he was capable of making of it, should have induced every mature person, to take greater care than he otherwise would have taken — a degree of care adapted to the plaintiff’s capacity to protect himself. Whoever failed in this duty, if the failure resulted in injury to the plaintiff was guilty of actionable negligence. The defendant or its servants, should have exercised greater care in the running of its cars to avoid coming in contact with the plaintiff, than they would have exercised if an adult had been in the plaintiff’s position. Not observing it, they must be responsible for the injury resulting to the plaintiff.
Whether the plaintiff and his brother had been by their parents sent on- an errand, or were merely permitted to go ipto the street, for exercise or diversion, does not appear from *82the testimony disclosed in the bill of exceptions, nor is it material in the view we take in this case. Whether negligence on the part of a parent in exposing an infant child to danger, will bar an action brought by the child, against him who negligently causes injury, is a question which has been the matter of frequent controversy in the courts of this country. The affirmative is maintained by the courts of Maine, Massachusetts, New York and Indiana, while the negative is supported by the courts of Connecticut, Minnesota, Wisconsin, Ohio, Tennessee, Vermont, Pennsylvania, and the supreme court of the United States. The authorities are collected in Wharton, on Law of Negligence, § 309 and 312. The parent is entitled to the custody of the child, and the law demands from him a care, maintenance and protection commensurate with his ability and the child’s wants. But we know of no principle of law, which will justify a denial of the child’s legal rights, because of the failure of the parent to extend to him the protection which the law demands. When the parent fails in this duty, there would seem to be greater reason for extending to the child a higher degree of civil protection. It is certain that under the law of this State, the parent cannot by any act, or omission, impair any right of property which the child may have. When the child sues to recover damage for a personal injury, the father cannot dismiss, release or compromise the suit. Isaacs v. Boyd, 5, Port. 388. As he cannot exercise any authority over the suit, no act of his should be received in evidence to defeat it. If a child should be abandoned by his parents, thrown out as a mere waif on society, it is not possible it seems to us, that one who negligently inflicts on it an injury, can be heard to invoke the parent’s crime, to shield himself from liability for wrong. ' It seems repulsive to our sense of justice, that because the parent is negligent of his child, others may with impunity, be equally negligent of its helplessness, and equally indifferent to its necessities. The law" may not compel active charity for the relief of the child, but it does shield him from positive wrong or neglect. Without inquiring therefore, whether negligence can be imputed to the parents of the plaintiff, because they permitted him to go into a crowded street of a populous city, unattended except by a brother not capable of protecting him, we do hold, that if it were negligence, it cannot be charged to the plaintiff of affect his right of recovery in this case. The court did not err in any of the charges given, or in the refusal of charges requested.
The statute declares, “no judgment can be arrested, an*83nulled, or set aside for any matter not previously objected to, if tbe complaint contains a substantial cause of action.” B. C. § 2811. Tbe damages assessed by tbe jury exceed the amount claimed in tbe complaint, and tbe judgment pursues tbe verdict. No objection was taken in tbe court below to the rendition of judgment. The judgment pursues, and of necessity pursues tbe verdict. If there be error, it is in the verdict, and not in tbe judgment. An error in a verdict must be corrected by a motion for a new trial, or a motion to set it aside. No such motion appears to have been made in tbe court below, and cannot now be made here. To entertain it here would be in violation of tbe statute.
Tbe judgment is affirmed.