Westbrook v. Mobile & Ohio R.R. Co., 66 Miss. 560 (Miss.)

Arnold, C. J.,

delivered the opinion of the court.

We are unable to subscribe to the doctrine that a minor four or five years of age, shall, as matter of law, be charged with contributory negligence, and barred from recovery in an action brought by him or in his behalf for an injury inflicted upon him by another, because he did not exercise reasonable care to avoid the injury. A child of such age, is generally incapable of choosing between right and wrong — between good and evil — and between care and rashness. From him duties to others are not exacted, but from others to him duties are recognized and enforced.

At common law, a child under seven years of age is conclusively presumed to be without discretion and incapable of committing crime. And between seven and fourteen years of age, he is also

prima fade incapable of exercising judgment and discretion, but evidence is received to rebut the presumption of incapacity. 1 Bish. Cr. L., § 368; *1* Whart. Cr. L., § 58.

The rule which exempts a child of tender years from responsibility, while it may not operate justly in every possible case, on the whole, promotes the end of justice, and we follow the authorities which hold that a child of the age of appellant is prima fade exempt from responsibility, but that testimony is admissible to show the contrary, and that the question of capacity in such case, is one of fact for the jury, and not one of law to be determined by the court. R. R. Co. v. Gladman, 15 Wall. 401 ; R. R. Co. v. Stout, 17 Ib. 657 ; 1 Thompson on Negligence 452, note 6 ; 2 Ib. 1182.

If appellant was of exceptional maturity and capacity for one of his age, or capable of taking care of himself under the circumstances, these facts should have been pleaded, or notice given of them under the general issue according to the statute. As the second plea fell short of this requirement, the demurrer to it should have been sustained.

The third plea constituted no defense to the action. When an action for the negligent injury of an infant is brought by the parent for the parent’s own benefit it may justly be held that the contributory negligence of such parent in exposing or permitting his child to be exposed to danger may be shown in bar of the action, except when the injury to the child was committed wantonly, willfully, or recklessly.

It is the duty of the parent to guard and protect his infant child from danger, and this duty is more imperative in proportion to the weakness and incapacity of the child. Failure of the parent to discharge such duty is negligence, and if such negligence contributes directly or essentially to the child being injured, the parent is a concurrent wrong-doer with the party inflicting the injury, and his own negligence, with the exception above stated, would be a bar to his own suit. Beach on Con. Neg., § 44, and authorities there cited; Pratt Coal and Iron Co. v. Brawley, 83 Ala. 371.

But when the action is brought, as in the case at bar, by the in

fant, or for his benefit, the better rule is that the negligence or misconduct of the parent or custodian of the child shall not be Imputed to the child. Beach on Con. Neg., § 43, and authorities there -cited. To charge the child with the negligence of the parent or -custodian in such case, would be, as said by the supreme court of New York, in Lannen v. Albany Gas Light Co., 46 Barb. 264, to visit “ the sins of the fathers upon the children, to am extent not ■contemplated by the decalogue, or in the more imperfect digests of human law.”

Infants have legal rights distinct from their parents which are ■carefully protected by law, and among these, is the right to security from personal injuries occasioned by the negligence or willful wrong of others. Indeed, it seems that the negligence or dereliction of the parents or custodians of children, instead of being a Justification for others to abuse or'misuse the children, should have a contrary effect, both in law and morals.

It was well said by the supreme court of Alabama, in R. R. Co. v. Hanlon, 55 Ala. 70, “ We know of no principle of law, which will justify the denial of a child’s legal rights, because of the failure • of the parent to extend to him the protection demanded by law. When the parent fails in this duty, there would seem to be greater •reasons for extending to the child a higher degree of civil protection. If a child should be abandoned by his parents, and thrown -out as a mere waif on society, it is not possible, it seems to us, that one who negligently inflicts an injury on it, can be heard to invoke the parent’s crime to shield him from liability for such wrong. It seems repulsive to our sense of justice, that, because the parent is negligent of the 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 and injury.”

The declaration was not demurrable. The demurrer should riot have been extended back to the declaration.