Dissenting Opinion.
Fenner, J.We originally decided this ease in favor of defendants by affirming the judgment appealed from.
On application for rehearing the court sets aside its former decree and decides in favor of plaintiffs.
I' extract from the original opinion a statement of the facts of the case, the correctness of which was not impugned even in the application for rehearing:
“The defendants were engaged in paving Coliseum street with Gloster gravel. The iron roller in question was one of two which were employed by them as necessary implements for the prosecution of the work. The other roller having met with an accident, the driver of this roller was called to go to it, at a distance of two or three squares, to render assistance. He drove to a point on St. Mary street, near the crossing of Ooliseum, and left his team against the sidewalk, nearly opposite the residence of plaintiffs. The mules *74were rgentle, accustomed to stand, and disinclined to move and pull the heavy roller without urging.
“The minor child of plaintiffs was a bold, active, intelligent boy of 5 years and 7 months of age, whom it was difficult to keep out of the street, although his parents usually kept their gate locked. Their yard was separated from the adjoining lot by a wooden partition which the boy had no difficulty in climbing, and the evidence shows that he was frequently in the street unattended. ’ On the occasion in question his proceedings were observed by an invalid lady who sat upon her gallery in view of plaintiffs’ premises. She first observed him within his yard trying to start the mules by pelting them with pieces of mud or dirt. Failing in this, he clambered over the partition, and running to the roller, began to climb up it. She called out to him ‘Don’t, Richie,’ and he, hearing her, and, as she says, evidently thinking some one in his house had called, jumped down, ran and climbed back into his yard. Presently he came over again and began to mount the roller, when she again called to him: ‘Oh, Richie; don’t Richie!’ whereupon he again got down; but looking around and seeing that it was she who called, he paid no attention and again began to climb the roller. She still called to him, as she says, ‘intones of alarm and entreaty,’ ‘ Oh, don’t, Richie!’ but in spite of the warning he mounted, got into the driver’s seat, and, catching hold of the reins, started the mules. The excitement, in her condition of nervous prostration, caused her to faint, and she saw no more of the accident. Another lady testifies to his pelting of the mules, and also heard him, from her chamber, cry ‘ Gee up,’ on which she ran out and saw the mules moving off with him in the seat and holding the reins. The attention of other persons was attracted, who began to cry out ‘ Whoa ’ to the mules, and ran to stop them; but before they could reach them the little fellow tried to get down, and in the effort was caught between the frame work and the iron roller, and was fatally injured.”
I take pleasure in commending the majority opinion for its learned and lucid statement of the law and careful review of the authorities. I deduce from these the following propositions of law, in which I concur.
1. Children of tender years are not held to the same degree of care and caution required of adults, but only to that degree of care and propriety of conduct which may be expected of children of the *75:same maturity and capacity, to be determined according to the circumstances of each particular case.
• 2. The particular age at which children may be held responsible for some degree of care is, as Mr. Bishop says, “not made definite by adjudications, but depends upon the particular case, with its circumstances, and the intelligence of the individual child; and the minor, of whatever age, is required to exercise the care which, under the circumstances, is reasonably to be expected of one of his particular age and capacity, a lack whereof is, if contributory to the injury, the barring contributory negligence.” Bishop, Non-Contract Law, Sec. 586.
3. No doubt a child of extremely tender years would be held as matter of law to be irresponsible for any degree of care, but after a child passes the age of 5 years human experience teaches that he has some discretion, some capacity for distinguishing between right and wrong, and for earing for his own safety. Mr. Thompson sensibly defines the rule to be: “If there is any doubt as to the child being of the age and capacity that in law constitutes one (in any degree) sui juris, it should be submitted to the jury to say by their verdict whether he is or not;” and he quotes cases where such was held to be the proper course in cases of children of 6, of 5 and 6 months, of 5, and of 4 years and 7 months old. 2 Thompson on Negligence, p. 1182.
In the case of a child 5 years and 9 months old the Supreme Court of Maryland held it to be a proper question for the jury whether “the accident could not have been avoided by the exercise of such ■care and caution as ought under the circumstances to be reasonably expected from one of his age and intelligence.” McMahon vs. R. R. Co., 39 Md. 438.
The question in this case is whether, under the particular circumstances, this child of 5 years and 7 months, shown to be bright and intelligent, exercised that care and caution which might be reasonably expected from children of like age and capacity under similar circumstances. This is not a question of law, but of fact, which in the common law States would go to the jury, whose finding thereon could not be reviewed.'
It was, on the prayer of plaintiffs themselves, submitted to a jury in this case, which found unanimously in favor of defendants.
Under our peculiar jurisdiction we have power to review the *76verdict both on the law and facts; but it is difficult to conceive of a question on which the verdict of a jury should have greater weight. It is a question of observation and experience as to which the judgment of any pater familias, unskilled in the law, would be just as valuable as that of the most learned jurisconsult.
The circumstances of this case are exceptional and extraordinary, without aparallel in any case cited, except thatof Wendell vs. R. R., 91 N. Y. 420, where the circumstance that the child acted in defiance of warning defeated his claim.
They exhibit a mischievous purpose, conceived by an intelligent boy, acted on in defiance of repeated and strenuous warnings given at the moment, accompanied with clear consciousness of wrongdoing, evidenced by his running away when first warned, desisting again temporarily at the second warning, renewing his misconduct only when he discovered the helplessness of the person warning' him, and finally by his jumping off in order to escape when he saw persons running toward him, without which latter act he would not. have been hurt.
I am bound to hold that such conduct, under such circumstances, did not exhibit that care and propriety which are reasonably to be expected from the ordinary run of children of even his tender years.
Warnings given at the moment operate to check the natural heedlessness of childhood and to counteract its lack of comprehension. Very few children of his age would have disregarded andjdefied them so recklessly. This feature radically distinguishes this, case from Lynch vs. Nurdin, and all the others relied on in the majority opinion.
The case against the defendants is not aggravated by any gross and criminal negligence on the part of their agent. He left his mules only for a brief period, and on urgent occasion. The mules were gentle and accustomed to stand. The roller was heavy and difficult to pull, and there was no likelihood of their running away with it, or moving, even if started, otherwise then at a slow pace, little likely to hurt anybody. The roller was not a dangerous machine, but, on the contrary, innocent, and little likely to injure any one. This boy might have climbed upon and over it to his heart’s, content without danger. He might even have driven it without the slightest peril. The cause of his injury was simply his act, inspired by his consciousness of wrong-doing, in jumping off to escape being caught in his mischief. While sympathizing with the bereaved *77parents, I think they have no case for damages against these defendants, and I therefore dissent.