Rappa v. Connecticut Co. , 96 Conn. 285 ( 1921 )

We have very recently restated our rule as to the degree of care required of immature children, in the case of Lederer v. Connecticut Co., 95 Conn. 520,111 A. 785. In that case the trial court charged the jury that the plaintiff's intestate, "if only five years and eight months old was bound to use such care as reasonably prudent boys of his age under similar circumstances would have used." Of this instruction we said: "This instruction differs from our rule of reasonable care for the immature child. We merely require him to use such judgment and experience as children of similar age, judgment and experience would use under the circumstances. . . . Knowledge of the child is one consideration in ascertaining whether he has been guilty of contributory negligence, but it is not the controlling element. The judgment of the boy — that is, his discretion to heed and his power of self-control — is the predominant element." Citing Brennan v. Fair Haven W. R. Co., 45 Conn. 284, 298, 29 Amer. Rep. 679;Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693,53 A. 5; Birge v. Gardner, 19 Conn. 507, 512, 50 Amer. Dec. 261.

In this case the court instructed the jury in several slightly different forms. Twice it is said that the plaintiff was bound to use such care "as a reasonably prudent boy of his age" would have used under similar circumstances; once that he was bound to use such care "as a reasonably prudent boy of his age and experience would ordinarily use"; and again that he was bound to use the care which "an ordinarily prudent boy of his age and with his knowledge and experience would ordinarily use." After some deliberation the jury returned for further instructions on this issue, and the court than gave them the following test: "Did he fail to use his senses as a reasonably prudent person of his age and his intelligence and experience would do in the same circumstances."

The charge does not contain any reference to the element of judgment, discretion or self-control. It holds up to the jury as the standard of reasonably careful conduct for a child of tender years, that which might be expected of an ordinarily prudent person whose knowledge, intelligence and experience were more or less limited by reason of his immaturity; but it fails to make proper allowance for what was called, in the Brennan case, "the thoughtlessness of childhood," and in the Lederer case, the predominant element of discretion and self-control. In this respect the charge was erroneous and harmful.

"Ordinary or reasonable care as applied to a young child means such care as may reasonably be expected of children of similar age, judgment and experience, under the circumstances." DiMaio v. Yolen BottlingWorks, 93 Conn. 597, 600, 107 A. 497, quoted with approval in Lederer v. Connecticut Co., 95 Conn. 520,111 A. 785. "The question for the trier, therefore, was not the ordinary one of whether or not her conduct was that of an ordinarily prudent person under like circumstances, but a mixed or double one involving two inquires: first, as to what was to be reasonably expected of a child of her age, intelligence and judgment; and second, whether her conduct upon the occasion in question was such as to meet these expectations." Boland v. Connecticut Co., 83 Conn. 456, 458, 76 A. 1005.

Upon the correlative issue of the degree of care which the motorman was bound to exercise in operating his car at a place where children were likely to be found in the street, the charge was also erroneous. It happens that the charge on this issue is practically identical with the charge in the Lederer case, and our reasons for sustaining the sixth, ninth, tenth and eleventh reasons of appeal are fully stated in that opinion.

There is error and a new trial is ordered.

In this opinion the other judges concurred.