ON REHEARING-.
Barclay, J.— After a second argument and thorough reconsideration of this cause, we adhere to the *284conclusion first announced in it, that the judgment should be affirmed.
The statement accompanying the opinion fully presents the salient facts involved, and such other matters in the record as may seem of any note will be mentioned incidentally later.
At the time of his injury the plaintiff was but nine years old. He was a passenger on a street car operated by the defendant as part of a cable-railway line. His evidence tended to prove that he notified the conductor to stop at a certain street. As the car approached it, the conductor rang the bell. Plaintiff left the interior of the gripcar, where he had been seated, and got upon the step of the platform, holding the handrail. The conductor was on the platform. The car slackened speed, but while plaintiff, with one foot off the step, stood ready to descend, it suddenly started forward, with a jerk, and ran some twenty or thirty yards. The jerk threw plaintiff off, and he fell in such a manner that his arm was run over by the wheels of the following car, inflicting serious injuries.
It was the duty of defendant to plaintiff as its passenger, in the circumstances described, to stop the car a sufficient length of time to give him reasonable opportunity to alight in safety a.t the point of his destination. That he appeared to be of tender years was, moreover, a fact to be considered by defendant in discharging that duty.
If a passenger is evidently crippled, infirm or very young, the duty of the carrier toward him while alighting must be performed with due regard to such apparent condition.
The testimony strongly tended to show a breach of the duty referred to.
Defendant’s instruction in the nature of a demurrer to the evidence was, therefore, properly refused, unless plaintiff be pronounced guilty of contributory negligence as a matter of law. That phase of the case *285will be discussed in connection with the other instructions.
II. There was no such variance between the petition and the proofs as would preclude submission of the cause to the jury. The allegation in the petition that defendant “stopped” the cars to permit plaintiff to alight is mere matter of inducement. The actual negligence of defendant charged is in permitting the car, on which plaintiff was a passenger, “to be put in motion while plaintiff was in the act of leaving the car without giving him a reasonable time to alight safely therefrom,” whereby he was thrown under the car, etc.
There certainly was no failure of proof of these facts, and we think no substantial variance from the pleading. But, even if it were adjudged that a variance between the allegations and evidence existed, it would be a sufficient answer to defendant’s claim for a reversal on that account that no affidavit was made in the,trial court, proving that defendant had thereby been misled to its prejudice in maintaining its defense upon the merits. Without such showing under our statutes, no mere variance can form the basis of a reversal. (R. S. 1879, sec. 3565; R. S. 1889, sec. 2096; Olmstead v. Smith (1885), 87 Mo. 602.
III. The chief contention of defendant -is that there is error in the rulings of the trial court upon the instructions.
The first one given at plaintiff’s instance, it is claimed, submitted to the jury a theory for recovery predicated on the actual stoppage of the car for an insufficient time, whereas the testimony disclosed that no stop at all was made.
This criticism depends on a construction of the language of the court, which we think does not correctly interpret its meaning.
The fact submitted to be found was that the defendant’s servant “did not stop a sufficient length of time to permit the plaintiff, acting with reasonable care and *286diligence for one of his years, to alight in safety.” This was supported by evidence that though the car, after the conductor’s signal, came sufficiently near to a rest to induce plaintiff to get into position to step off, it did not in fact stop at all, but just then shot away with such violence as to throw him off.
The instruction does not require the jury to find that the car stopped, but merely that, when it reached plaintiff’s destination, it did not stop a sufficient time as described. The rule of law it stated was entirely correct and abundantly sustained by the evidence.
It is next asserted that the second instruction for plaintiff should not have been given. In considering its effect, however, as part of the law in the case, it should not be isolated, but read in conjunction with the other instructions.
The question which it declared to be one for the jury “under all the facts and circumstances in proof” was “whether plaintiff had at the time sufficient capacity and discretion to understand” that the steps were a more dangerous place than inside the car.
But this was not all. In connection therewith the jury were told by the first instruction that to entitle plaintiff to recover they must, among other things, find plaintiff' “acting with reasonable care and diligence for one of his years.”
Reading these instructions together they declare the principles of law quite as favorably for defendant as the case allows.
Although plaintiff was a boy, aged only nine years, he was not absolved from the exercise of all care.
It is true, a remark was dropped in Dowling v. Allen (1885), 88 Mo. 298, to the effect that “no negligence is imputable to a child,” but that case was not ruled on such a theory, and it was obviously too broad a statement.
While the law makes due allowance for the thoughtlessness and indiscretion of youth it does not hold it *287necessarily irresponsible. A child must be very much younger than plaintiff to warrant the court in declaring, as a conclusion of law, that he is incapable of negligence.
To the extent that a child has knowledge and understanding of a danger or where it is of such nature as to be obvious even to one of his years he is under a legal duty to avoid it.
So in the case in hand the plaintiff was certainly bound to use some degree of prudence and foresight to avert injury in the circumstances of his situation. The standard of his duty was such reasonable care and diligence as characterized the average boy of his age. He would be legally responsible for a failure’ to exercise such care. Railroad v. Gladmon (1872), 15 Wall. 40 ; Moynihan v. Whidden (1887), 143 Mass. 287; Ostertag v. Railroad (1877), 64 Mo. 424.
In the light of the facts it was rather favorable than 'Otherwise to defendant to suggest (in the second instruction) the possible inference that plaintiff assumed a dangerous position in getting on the step. The proof was that he remained inside the car till the con- . ductor gave the bell-signal to halt, then went out to the platform and got upon the step awaiting the moment when the car would come to a full stop. His entire conduct in the premises was entitled to consideration in determining whether he exercised ordinary care. Even if he were aware that a position on the step was more dangerous than inside, it would not necessarily follow as an inference of law or fact, that he was guilty of negligence in getting on the step when he. did, in the circumstances.
But if there was any error in the instruction in this regard it was not to the prejudice of defendant. R. S. 1889, sec. 2100.
Any language in it which may be supposed to resemble the instruction criticised in Eswin v. Railroad *288(1888), 96 Mo. 290, is relieved of any possible misleading tendency by the submission to the jury as an issue of fact, in the first instruction, of the question whether plaintiff was “ acting with reasonable care and diligence for one of his years.”
There is no substantial difference in effect between the terms “ordinary care ” and “reasonable care” as the latter was used in that instruction. Beers v. Railroad ( 1849 ), 19 Conn. 570 ; Lynch v. Nurdin, 1 Ad. & Ell. N. S. 36 ; Neal v. Gillett (1855), 23 Conn. 437.
Taking these instructions conjointly we think they contain no material error to the detriment of defendant’s substantial rights.
It is next urged that the trial court should have given the refused instruction, numbered 3, directing the jury to ignore the testimony of any witness regarded by them as incapable of distinguishing between right and wrong.
Whatever view may be taken of the competency of the minor plaintiff as a witness, it is clear that no error was committed in refusing that instruction, predicated on such incompetency. That issue was one for the court, not the jury, to try.
However, as defendant, also objected to him during his examination, duly excepted to his admission and made that ruling a ground of the motion for new trial, this point must be further considered.
The test of competency of children as witnesses in this state is established by the statute declaring the followingpersons “incompetent to testify,” viz.: “ Second, a child under ten years of age who appears incapable of receiving just impressions of the facts respecting which they are examined, or of relating them truly.” R. S. 1879, sec. 4017; R. S. 1889, sec. 8925.
Under this law a child under ten is presumptively incompetent; but the issue of such competency is peculiarly one for the trial judge, and we will not *289reverse his ruling on such a question unless it affirmaatively appear that there has been an abuse of discretion.
The fact that the court permits a witness to testify, after objection made on account of his youth, is to be accepted as a ruling that it was satisfied, upon personal inspection and observation, that he was capable of receiving just impressions of the facts about which he was called, and of relating them truly. But in the case at bar there is more than that.
On cross-examination defendant began an inquiry of the witness on this subject and the following colloquy (as shown by the bill of exceptions) ensued, viz. :
“ Q. What did you understand that you were doing when you held up your hand, and the man said something to you ? what did you understand was being done? A. Nothing, as I know of.”
BE-JDIKEOT EXAMINATION :
“ Q. You were asked to .hold up your hand ? ”
By Mr. Johnson: “lam going to object right away to that kind of questions.
“ Q. When you held up your hand and was sworn to tell the truth, the whole truth in this case, what did you understand you were going to do ? ” Objected to by defendant’s counsel. Objection overruled by the court, to which ruling of the court the defendant, by its counsel, then and there at the time duly excepted.
By the court: “ Do you know what will become of you if you do not tell the truth in this case ? Say, Albert, do you know anything about that? A. No sir.”
By plaintiff’s counsel: “ What do you understand in reference, if anything, to the punishment of boys if they appear as witnesses in a cáse and tell a falshood, do not tell the truth, where will they go when they die ? A. To the bad place.
*290“ Q. They will be punished if they do not tell the truth? A. Yes sir.”
RE-CROSS EXAMINATION.
“I never talked with anyone about this. No one told me that I would have to tell about it here in court. I did not know until I came up here this morning that I would have to tell about it. If that is not true, I will go to the bad place.”
RE-DIRECT EXAMINATION.
“I talked to Captain Waters about how I got hurt.”
RE-OROSS EXAMINATION!
“I talked with Captain Waters, he asked me, but no one but him, he did not tell me what I would have to swear to ; I knew if I did not tell the truth, I would go to the bad place ; learned it in Sunday School.”
Furthermore the verbatim report of plaintiff’s entire testimony plainly tends to show that he was competent under the statute. His story is told clearly, plainly and apparently with candor. On the point where exaggeration might naturally be expected and would obviously be to his interest, namely, in respect to the nature and extent of his injury, it is entirely wanting. His account of the accident is strongly corroborated by several disinterested eye witnesses. His employer (who kept a fruit stand) also testified that the boy was earning fifty cents a day and board as an assistant in business at the time of the accident.
Instead of proving the contrary we think this record affirmatively indicates that he fully met the requirements of the law respecting competency.
Something has been said upon the rehearing about the large amount of plaintiff’s damages ($8,500), and the intimation is thrown out that they are excessive. But as no such objection to the verdict was made in the *291motion for new trial that matter is not a proper subject to review.
“No exceptions shall be taken in an appeal or writ-of error to any proceedings in the circuit court, except such as shall have been expressly decided by such court.” R. S. 1879, sec. 3774; R. S. 1889, sec. 2302.
No point has been made in this court ascribing error to the third instruction for plaintiff, defining the measure of his damages.
The judgment is affirmed
vith the concurrence of all the judges, except Sherwood, J., who dissents.