Where the duty exists to take care with respect to the safety of children of tender years, their very age must be taken into account, so that what might be reasonable care with respect to the safety of adults, who are capable to some extent of looking out for themselves, might not be reasonable care but gross negligence with respect to children. As to young children the care required to be exercised is measured by the maturity and capacity of the child: 7 Am. Eng. Ency. of Law (2 ed.), 441, and cases there cited, Cassida v. Oregon Ry. N. Co., 14 Or. 551 -558 ( 13 P. 438); Lawrence v. P.R.L. P. Co., 91 Or. 559 -566 ( 179 P. 485); Friedman v. Snare Triest Co., 71 N.J.L. 605 ( 61 A. 401, 108 Am. St. Rep. 764, 2 Ann. Cas. 497, 70 L.R.A. 147); Rohloff v. Fair Haven W.R.R. Co., 76 Conn. 689 ( 58 A. 5-8); Union Pac. Ry. Co. v. McDonald, 152 U.S. 262-277 ( 38 L.Ed. 434, 14 Sup. Ct. Rep. 619); Powers v. Harlow, 53 Mich. 515 ( 19 N.W. 257, 51 Am. Rep. 154); Mattson v. Minnesota N.W. Ry. Co., supra; Barnett v. Cliffside Mills, supra; Dahl v. Valley Dredg. Co., 125 Minn. 90 ( 145 N.W. 796, 52 L.R.A. (N.S.) 1173); 2 Thompson on Neg., § 1806. Children of tender years are endowed by their Maker with childish instincts.
"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 Bottling Works, 93 Conn. 597, 600, 107 A. 497; Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5; Kishalaski v. Sullivan, 94 Conn. 196, 108 A. 538. The court was also in error in charging that "if you believe from the evidence that plaintiff's intestate . . . knew that trolley-cars ran frequently through Congress Avenue, and knew that it was dangerous . . . and, notwithstanding, without looking or taking other precautions to see whether one might be coming, rode out suddenly from the sidewalk upon the track immediately in front of a car so that he was instantly struck after reaching the track, and that such conduct was the proximate cause of his injury, your verdict should be then under such facts for the defendant."
But being, as he was, of average intelligence and ordinary physical development, he was not incapable of negligence, that is to say of a failure to exercise "such care as may reasonably be expected of children of similar age, judgment and experience, under similar circumstances." Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5. The question of the boy's negligence, in view of all the pertinent considerations of age, maturity, intelligence, experience, and so forth, was one for the jury, and its finding must be final in so far as the facts involved in the present case are concerned. To hold otherwise would be to supersede its conclusion of fact by a conclusion of law contrary to accepted principles.
Although some comments to the Restatement (Second) sections for negligence of product sellers acknowledge that contributory fault may arise when the danger is known to the consumer; see, e.g., 2 Restatement (Second), supra, § 398, comment (b), p. 336; such fault is not equivalent to the consumer expectation definition in comment (i) to § 402A. If legally available, such fault would be a defense, not an element of the plaintiff's prima facie case, and only if the plaintiff had acted unreasonably in the face of his knowledge. See Stafford v. Roadway, 312 Conn. 184, 191, 93 A.3d 1058 (2014) ; Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 358, 374 A.2d 1047 (1977) ; Rohloff v. Fair Haven & Westville Railroad Co., 76 Conn. 689, 692–93, 58 A. 5 (1904). Such a defense is not available, however, for a claim under our act. Our legislature limited application of this common-law defense in 1973, and abolished it for product liability claims in 1979, when adopting that act.
Our own conception of the rule has been definitely established, by frequent repetition of statement and long-continued adherence, in substance, in charges approved on appeal, as "such care as may reasonably be expected of children of similar age, judgment and experience." Rutkowski v. Connecticut Light Power Co., 100 Conn. 49, 53, 123 A. 25; Morro v. Brockett, 109 Conn. 87, 90, 145 A. 659; Menzie v. Kalmonowitz, 107 Conn. 197, 201, 139 A. 698; Brown v. Page, 98 Conn. 141, 146, 119 A. 44; Lombardi v. Wallad, 98 Conn. 511, 120 A. 291; Lederer v. Connecticut Co., 95 Conn. 520, 525, 111 A. 785; Chernov v. Blakeslee, 95 Conn. 617, 111 A. 908; DiMaio v. Yolen Bottling Works, 93 Conn. 597, 600, 107 A. 497; Kishalski v. Sullivan, 94 Conn. 196, 199, 108 A. 538; Boland v. Connecticut Co., 83 Conn. 456, 76 A. 1005; Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5; Brennan v. Fair Haven W. R. Co., 45 Conn. 284, 299. The specific criticism which the appellant, in its brief, makes of the charge is that the jury were "directed to consider only the conduct of reasonably prudent boys of that age and were not allowed to use for their guidance the intelligence, judgment, experience, knowledge and capacity of Stephen Marfyak, Jr., himself," the claim advanced being that the personal characteristics of the child himself, which the assignment of error denominates the "subjective and internal standard," instead of the "objective, external standard," which the charge is construed as utilizing, "furnishes the true test by which to judge the conduct of minors in this State."
In determining whether the plaintiff's decedent was free from negligence which was the proximate cause of his death, his conduct is not to be measured by the same standard as that of a matured person but by such judgment and experience as boys of similar age, experience and judgment would use under the circumstances. DiMaio v. Yolen Bottling Works, 93 Conn. 597, 600, 107 A. 497; Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5. Knowledge of the boy is one consideration in ascertaining whether he has been guilty of contributory negligence but it is not a controlling element. "The judgment of the boy — that is, his discretion to heed and his power of self-control — is the predominant element."
fe place in which to alight, as far as that place is provided by it or is affected or conditioned by the movement of the vehicle, and that duty is only satisfied if it exercises the highest degree of care and skill which reasonably may be expected of intelligent and prudent persons engaged in such a business, in view of the instrumentalities employed and the dangers naturally to be apprehended. St. John v. Connecticut Co., 103 Conn. 641, 644, 131 A. 396; Belledeau v. Connecticut Co., 110 Conn. 625, 627, 149 A. 127. An automobile bus is able to move or stop in the street at the will of its driver and the safety of the place he offers its passengers to alight may be affected or conditioned by the passing traffic. Cleveland-Akron-Canton Bus Co. v. Walker, 30 Ohio App. 411, 165 N.E. 373. The care to be exercised toward a young child traveling by himself must be proportioned to the degree of danger inherent in his youth and inexperience. Brennan v. Fair Haven W. R. Co., 45 Conn. 284, 298; Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 694, 58 A. 5; Boland v. Connecticut Co., 83 Conn. 456, 457, 76 A. 1005. When, however, the duty of the carrier to provide a safe place to alight has been fulfilled and the passenger has left the vehicle it ceases to owe to him any duty other than that which it owes to any person coming within the range of its activities, not to do him injury by a failure to exercise reasonable care. Powers v. Connecticut Co., 82 Conn. 665, 669, 74 A. 931.
Upon these facts, the jury might well have found that the boy, had he not paused, would have passed beyond the point of danger in a moment more. They might reasonably have concluded that he was struck by the trolley car, not because he did not see it coming, not because he went upon the track when he did not have sufficient time to cross in safety, but because, delayed by catching his foot in the depression, startled by the cry of his schoolmate to look out for the truck, and confused by its approach at considerable speed from the opposite direction, he paused and then attempted to escape by turning back. Whatever would have been the case had the intestate been an adult, whether or not he exercised the care which a boy of his age, judgment and experience would have used, was a question of fact for the jury, and their conclusion that he did do so is amply justified by the facts which they might properly have found. Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 693, 58 A. 5; Lynch v. Shearer, 83 Conn. 73, 75 A. 88; Russell v. Vergason, 95 Conn. 331, 435, 111 A. 625; Woodhull v. Connecticut Co., 100 Conn. 361, 365, 124 A. 42: Bunnell v. Waterbury Hospital, 103 Conn. 520, 526, 131 A. 432.
Olesen v. Noren, 161 Minn. 113, 201 N.W. 296; Erickson v. M. St. P. S.S.M. Ry. Co. 165 Minn. 106, 205 N.W. 889; Matson v. Port Townsend S.R. Co. 9 Wn. 449, 37 P. 705. The conduct which is required toward adults may fall short when exercised toward infants in the same circumstances. Rohloff v. Fair Haven W.R. Co. 76 Conn. 689, 58 A. 5. It is contended on behalf of appellant that it was entitled to a directed verdict or a new trial because the boy was guilty of contributory negligence.
Whether contributory negligence could be charged upon either of these children was a matter exclusively for the jury. Duff v. Husted, 95 Conn. 206, 111 A. 186; Rohloff v. Fair Haven W. R. Co., 76 Conn. 689, 691, 58 A. 5. In the sentence of the charge which is complained of, the court properly left this matter for the jury to determine by applying their judgment and experience to the facts which they should find to have been disclosed by the evidence.