The opinion of the court was delivered by
Redfield, J.The general principles of law, applicable to the subject of actions for negligence, are well settled, no doubt, and familiar to the profession. They are, perhaps, sufficiently well expressed by Ld. Ellenborough, Ch. J., in Butterfield v. Forrester, 11 East 60: “One person being in fault will not dispense with another’s using ordinary care for himself. Two things must concur to support this action, — an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it, on the part of the plaintiff.” This is substantially the formula, which, since that time, has been followed, in charging juries in road cases; and, as a general rule, it is unobjectionable.
But in its application to the multiplicity of cases which occur, and the almost endless variety of incidents attending injuries of this character, it is not uncommon, that perplexing doubts will spring up, which this general formula is wholly insufficient to solve. Hence, this case has been somewhat questioned, perhaps it may be said, criticised certainly, in the later cases, both English and American. See Marriott v. Stanley, 39 E. C. L. 359, 361, n. a. But the remarks of the learned judge, as applicable to the case before *222him, (and we have, perhaps, no right to give them any other application,) are most unquestionably sound. The conduct of both the parties, in that case, was certainly very singular, and the case hardly a precedent for any other. But the principle stated by the learned judge is of universal application to similar cases. In order to sustain the action on the case for negligence of the defendant, it must appear, that the injury did not occur from any want of ordinary care on the part of the plaintiff, either in whole, or in part. In other words, if ordinary care on the part of the plaintiff would have enabled him to escape the consequences of the defendant's negligence, he has no ground of complaint. He may be said, in such a case, to have been himself the cause of any injury, which he may have sustained under such circumstances. Hence we notice, in the trial of this class of cases by the English judges, at nisi prius, the question is stated in that form, and the jury are directed first to say, whether the injury occurred from the misconduct of the plaintiff. If so, the defendant has a verdict, of course. If not, the jury are, where any such doubt arises, required to say, whether the injury occurred from inevitable accident, or the negligence or misconduct of the defendant. Cotterill et ux. v. Starkey, 8 C. & P. 691, [34 E. C. L. 587.] And the rule holds, that the plaintiff cannot recover, if his want of ordinary care in part contributed to produce or to enhance the injury. Marriott v. Stanley, above cited. The English books are full of cases to this point. So, too, where the proof leaves the case merely doubtful, whether the injury is fairly attributable to the defendant’s wrong, or to that of the plaintiff, the case is not made out.
The case of Bridge v. Grand Junction Railway Co., 3 M. & W. 244, seems to us not to have essentially qualified the rule laid down by Ld. Ellenborough in Butterfield v. Forrester. It is, indeed, in this case expressly decided, that a plea, alleging that the injury was the joint result of carelessness in the agents of both railways, in managing each of the trains which came in collision, is no bar to the action. Lord Aeinger, it is to be observed, assigns no reason, why he considers the plea bad, in substance. So, too, the other barons assign no reasons, except Parke, B., who does say, “That unless he (the plaintiff) might, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, he is *223entitled to recover.” In Davies v. Mann, 10 M. & W. 545, the same court expressly decide, that the fact, that the plaintiff was somewhat in fault, is not sufficient to preclude a recovery on his part, and reiterates the same declaration by Parke, B., that “ The negligence, which is to preclude a plaintiff from recovering in an action of this nature, must be such as that he could, by ordinary care, have avoided the consequences of the defendant’s negligence.”
These cases seem to me correctly decided; but the language of Parke, B., may be, perhaps, liable to some degree of criticism. I should hesitate to say, that if it appeared, that the want of ordinary care on the part of the plaintiff, at the very time of the injury, contributed either to produce or to enhance the injury, he could recover ; because it seems to me, that is equivalent to saying, that the plaintiff, by the exercise of ordinary care at the time, could have escaped the injury. The defect, in substance, in the plea in Bridge v. Grand Junction Railway Co., seems to be, that there was no allegation of any misconduct on the part of the plaintiff or his agents; for non constat, that the engineers and conductors of the train, on which the plaintiff was conveyed, were so situated in regard to the plaintiff, that he was to be affected by their misconduct. No doubt, if the collision occurred altogether through the misconduct of the conductors of the train, upon which the plaintiff was conveyed, the defendants are excused, although they might have, at the time, been guilty of some degree of negligence, which did not contribute to the injury. But I am not prepared to say, that in the ordinary case of a collision, on a railway, by the misconduct of the agents and servants of both roads, the passengers are compelled to resort to that company, upon whose railway they are conveyed. But one would not be ready to say, confidently, such is not the rule of law, without more consideration than I have been able to give the subject. But we can readily suppose cases, where no such rule could possibly obtain, and, for aught appearing in the report of the case, that was such a case. So that, it seems to me, the words of Parke, B., are altogether beyond the scope of the case, and, as I think, too general and require qualification.
But the case of Davies v. Mann seems to me to merit a different consideration from that of Bridge v. Grand Junction Railway Co. In that case the beast, which was run over by the defendant’s team, *224was, of course, incapable of exercising care or prudence. The only question, which could be made in the case, is in regard to negligence on the part of the plaintiff, — whether it was ordinarily safe in him to suffer the animal, a donkey, to be in the road fettered. Lord Abinger says, It does not appear but “ the ass was lawfully in the highway, ” — and if it did “ it would make no difference, for, as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.” This brings this case within the principle of those cases, which have been decided, in regard to setting spring guns, sharp knives, &c., on one’s own grounds, for the protection of game, where persons, having no reason to suspect such weapons were so set, have, by trespassing on such grounds, been seriously injured, and have, notwithstanding their own misconduct, been suffered to recover damages of the owner of the grounds, — for the reason, perhaps, that such acts were esteemed gross negligence in the land owners.
And this seems to us to be carrying the rule farther, than is necessary to entitle the plaintiff to retain his verdict in the present action. Here the jury have found, that the plaintiff was pyoperly suffered by his parents to attend school at the age and in the manner he did, and that the injury happened through the ordinary neglect of the defendant; or, if not properly suffered to go to school, then that the defendant was guilty of gross neglect; for the Judge put the case in the alternative to the jury, and they have found a general verdict for the plaintiff. And we are satisfied, that although a child, or idiot, or lunatic, may, to some extent, have escaped into the highway through the fault or negligence of his keeper, and so be improperly there, yet if he is hurt by the negligence of the defendant, he is not precluded from his redress. If one know, that such a person is in the highway, or on a railway, he is bound to a proportionate degree of watchfulness, and what would be but ordinary neglect, in regard to one whom the defendant supposed a person of full age and capacity, would be gross neglect as to a child, or one known to be incapable of escaping danger. Boss v. Litton, 5 C. & P. 407, [24 E. C. L. 384.]
The only remaining inquiry is, whether a plaintiff, of the tender age of this plaintiff, is bound to the same rule of care and diligence *225on his part, irf avoiding or escaping the consequence of the neglect of others, which is required of persons of full age and capacity, in order to maintain his action for redress ? In Lynch v. Nurdin, 1 Ad. & E., N. S., 28, [41 E. C. L. 422,] the question came directly under review before the Queen’s Bench, and was very learnedly discussed and fully considered, and that court very fully determined, that no such rule of diligence can be applied to an infant plaintiff of very tender years. Lord Denman, Ch. J., after citing the opinion of Lord Ellenborough in Butterfield v. Forrester, says, “ Ordinary care must mean that degree of care, which may reasonably be expected of a person in the plaintiff’s situation, and this would evidently be very small indeed in so young a child.” The whole case goes upon the ground, that all, which is to be required of the plaintiff, is care and prudence equal to his capacity. We see no reason, whatever, to doubt the perfect soundness of the decision. Indeed, any other rule would be wholly impracticable, and must ultimately be abandoned by courts, because juries could not be made to act upon any such artificial and arbitrary rules of determination.
What is reasonable skill, proper care and diligence, &c., can only be determined, as matter of fact, by the jury. It is impossible'll to establish any general rule upon so indefinite a subject; and it is impossible to make juries, or merely practical men any where, determine these matters except upon the circumstances of each particular case. It is true, no doubt, that the defendant, in such cases, is to be„al]owed, a favorable construction of his own conduct, with reference to what he had reason to expect of the other party, at the time. One might possibly injure a deaf or blind man, without fault, through ignorance of his infirmity, expecting him to conduct differently from what he did. But in the case of a child four years old, there could be no doubt, the defendant was bound to the utmost circumspection, and to see to it, that he did not allow his team to acquire such impetus, after he saw the child, that he could not check them, or avoid injury to the child.
We have not felt bound to go into an extended review of the case of Hartfield v. Roper, 21 Wend. 615; for the facts in that case and the finding of the jury in this case have made so wide a difference in the two cases, that one is no guide U, be determination of the *226other. The case of Hartfield v. Roper is, so far as it has any application to the present case, altogether at variance with that of Lynch v. Nurdin, and far less sound in its principles, and infinitely less satisfactory to the instinctive sense of reason and justice.
Judgment affirmed.