A child under 7 years of age is conclusively presumed incapable of exercising the discretion necessary to its self-protection, and a motorman operating an electric car over tracks embedded in the public highway is bound to know this fact. Charges 4 and 5 were properly given. Government St. R. Co. v. Hanlon, 53 Ala. 70; Pratt C. I. Co. v. Brawley, 83 Ala. 371, 3 So. 555, 3 Am.St.Rep. 751; Bay Shore R. Co. v. Harris, 67 Ala. 6; Sheffield Co. v. Harris, 183 Ala. 357, 61 So. 88; Birmingham Ry., L. P. Co. v. Littleton, 201 Ala. 141, 77 So. 565; Alabama Power Co. v. Stogner, 208 Ala. 666, 95 So. 151; Georgia Pac. R. Co. v. Lee, 92 Ala. 262, 9 So. 230; Highland Ave. B. R. Co. v. Robbins, 124 Ala. 113, 27 So. 422, 82 Am.St.Rep. 153; Birmingham Ry. E. Co. v. Jackson, 136 Ala. 279, 34 So. 994; Anniston E. Gas Co. v. Rosen, 159 Ala. 195, 48 So. 798, 133 Am.St.Rep. 32; Birmingham, E. B. R. Co. v. Feast, 192 Ala. 410, 68 So. 294; Schmidt v. St. L. R. Co., 163 Mo. 645, 63 S.W. 834; Lederer v. Connecticut Co., 95 Conn. 520, 111 A. 785; Jones v. Strickland, 201 Ala. 138, 77 So. 562; International Harvester Co. v. Williams, 222 Ala. 589, 133 So. 270. Charge 10, given for plaintiff, is a correct statement of law in this case. Mobile L. R. Co. v. Baker, 158 Ala. 491, 48 So. 119; Birmingham R., L. P. Co. v. Brantley, 141 Ala. 614, 37 So. 698; Alabama City G. A. R. Co. v. Lumpkin, 195 Ala. 290, 70 So. 162; Birmingham R. E. Co. v. City Stable Co., 119 Ala. 615, 24 So. 558, 72 Am.St.Rep. 955; Denver C. T. Co. v. Brown, 57 Colo. 484, 143 P. 364; Sheffield Co. v. Harris, supra. Charge 52 was properly refused to defendant.
The charge upon the degree of care which the defendant's motorman was bound to exercise in operating his car at a place where children were likely to be found in the street, examined and held to be erroneous. The case of Lederer v. Connecticut Co., 95 Conn. 520, followed. Argued April 19th, 1921
It is undisputed that the following is the rule applicable to the plaintiff. "`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'" DiMaio v. Yolen Bottling Works, 93 Conn. 597, 600, 107 A. 497; Lederer v. Connecticut Co., 95 Conn. 520, 525, 111 A. 785; Marfyak v. New England Transportation Co., 120 Conn. 46, 50, 179 A. 9, and other cases there cited. The defendant argues that the only evidence as to the plaintiff's judgment and experience is that at the time of the accident he was six years old and probably in the second grade in school, and that this is insufficient for the purpose of "enabling the jury to set up the standard objective in its nature, — a child `of similar age, judgment and experience' — with which his conduct is to be compared and tested," and that more information concerning the plaintiff's judgment and experience is necessary "in arriving at the conception of the child of similar capacities constituting the recognized standard," as stated in the Marfyak case at pages 50 and 51.
The foregoing language did not instruct the jury that the defendants had to use greater than reasonable care, as the defendants argue. The language regarding "greater care" originated in Lederer v. Connecticut Co., 95 Conn. 520, 524, 111 A. 785 (1920) and was used by the Connecticut Supreme Court again in Johnson v. Shattuck, 125 Conn. 60, 64, 3 A.2d 229 (1938). In Johnson the ten year old plaintiff was struck by the defendant's vehicle while she rode on the seat of a bicycle which was being pedaled by a twelve year old boy.
"In overtaking this bicycle the defendant was bound to bear in mind the characteristics of young children in respect to their nonappreciation of danger, and reasonable care on his part under the circumstances required greater care to avoid injury to them than if they were adults better able to help themselves. Lederer v. Connecticut Co., 95 Conn. 520, 524, 111 A. 785. The court did not err in concluding that the defendant was negligent. Johnson v. Shattuck, 125 Conn. 60, 62. "The defendant alleges that the plaintiff swerves suddenly to the left causing the accident in question.
Wolfe v. Rehbein, 123 Conn. 110, 113, 193 A. 608; Greene v. DiFazio, supra, 422. This approval has been extended, at least in part, to the revised version of this rule in Restatement (Second), 2 Torts 339. Moonan v. Clark Wellpoint Corporation, 159 Conn. 178, 186, 268 A.2d 384. It is also established that an operator of a motor vehicle is bound to keep in mind the populous character of the neighborhood, the likelihood of children being in the street and their characteristic lack of appreciation of danger. Lederer v. Connecticut Co., 95 Conn. 520, 524, 111 A. 785; see also Johnson v. Shattuck, 125 Conn. 60, 64, 3 A.2d 229: This court, however, has continued to adhere to the principles of common-law negligence within its recognition that children require special consideration. Where there is no legal duty, there can be no actionable negligence.
"Speed is always associated with other circumstances, and it should be so presented to the jury when made the subject of discussion in a charge." Lederer v. Connecticut Co., 95 Conn. 520, 528, 111 A. 785. It was also the right of the defendant to have the jury correctly and adequately instructed on the principles of the law applicable to the duty of an operator to maintain a reasonable and proper lookout.
This Court however, upon logic and authority settled this question adversely to appellant in Dupuis v. Heider, 113 Fla. 679, 152 So. 659, wherein it was said: "Age is not the determining factor always on the question of the capability of exercising care. If a person is capable by reason of mentality, intelligence, experience, training, discretion, alertness, of exercising care in a given situation he is amenable to the consequences of his contributory negligence in a transaction resulting in his injury. Lederer v. Connecticut Co., 95 Conn. 520, 111 Atl. Rep. 785; Fishburn v. Burlington N.W. R. Co., 127 Iowa 483, 103 N.W. Rep. 481; Meserve v. Libby, 115 Me. 282, 98 Atl. Rep. 754; Mattey v. Whittier Machine Co., 140 Mass. 337, 4 N.E. Rep. 575; Rinaldi v. Levgar Structural Co., 97 N.J.L. 162, 117 Atl. Rep. 42." The Court properly charged the jury on this question as follows:
In overtaking this bicycle the defendant was bound to bear in mind the characteristics of young children in respect to their nonappreciation of danger, and reasonable care on his part under the circumstances required greater care to avoid injury to them than if they were adults better able to help themselves. Lederer v. Connecticut Co., 95 Conn. 520, 524, 111 A. 785. The court did not err in concluding that the defendant was negligent. In attacking the court's conclusion that the defendant's negligence in failing to give a warning of his approach "was a proximate cause of the accident, even though the negligence of the bicycle operator materially contributed to it," the defendant's claim is that since, when the bicycle started to turn, the automobile was so close that it was impossible for the defendant to stop or avoid a collision, it cannot be said that the substantial factor which caused the accident was his failure to give a signal.
In an emergency not due to his own negligence, one is not relieved of all obligation to exercise care but is required to exercise the care of an ordinarily prudent person acting in such an emergency. Lederer v. Connecticut Co., 95 Conn. 520, 527, 111 A. 785; Brody v. Dickie, 100 Conn. 189, 192, 122 A. 908; Oginskas v. Fredsal, 108 Conn. 505, 510, 143 A. 888; Gross v. Boston, W. N.Y. St. Ry. Co., 117 Conn. 589, 597, 169 A. 613; 45 C. J. 710. In the instant case, however, there is no claim that if the defendant first saw the plaintiff's decedent at a distance of approximately three feet anything which the defendant could have thereafter done would have saved the plaintiff's decedent.