Let the Circuit Court be advised to render judgment on the finding of the jury.[[237]]
BISAILLON v. BLOOD
Supreme Court, New Hampshire, June, 1888.
Reported in 64 New Hampshire Reports, 565.
Case, for the negligent injury of the plaintiff. Verdict for the defendant.
In October, 1886, the defendant, while driving a horse in a carriage on a public street of Manchester, ran over and injured the plaintiff, an infant then five years old, who had wandered from his home without an attendant or custodian, and was playing in the street with other children of about the same age.
The jury were instructed that the plaintiff being too young to exercise care for himself, it was the duty of his parents or natural guardians to exercise care and prudence for him to prevent his being injured, and if they were negligent in this respect, and their neglect contributed to produce the injury complained of, he cannot recover. To these instructions the plaintiff excepted.
Carpenter, J. The plaintiff would be entitled to damages for the defendant’s negligent injury of his property similarly exposed to danger by the carelessness of his guardian. Davies v. Mann, 10 M. & W. 546; Smith v. Railroad, 35 N. H. 366, 367; Giles v. Railroad, 55 N. H. 555. An infant of such tender years as to be incapable of exercising care is not less under the protection of the law than his chattel. The previous negligence of the plaintiff’s parents was immaterial. The only question for the jury was, whether the defendant by the exercise of ordinary care could have prevented the injury; if she could not, she was without fault, and is not liable; if she could, she is liable whether the plaintiff was in the street by reason of, or without, his parents’ negligence. In cases of this character, where an irresponsible child or an idiot is, by the negligence of the parent or guardian, exposed to peril without an attendant, or where a chattel is in like manner placed by the owner in a dangerous position, and either is injured by the act of a “voluntary agent present and acting at the time” (State v. Railroad, 52 N. H. 528, 557), the question of contributory negligence is not involved. The only question is, whether the defendant by ordinary care could or could not have prevented the injury. Nashua Iron & S. Co. v. Nashua Railroad, 62 N. H. 159, and cases cited.
Exceptions sustained.[[238]]
CONSOLIDATED TRACTION COMPANY v. HONE
Supreme Court, New Jersey, November Term, 1896.
Reported in 59 New Jersey Law Reports, 275.
Beasley, C. J. This is a suit brought by Henry Hone as the administrator of the estate of his deceased son, who was a minor and was killed by the carelessness of the servants of the plaintiff in error, the Consolidated Traction Company, in the management of one of their cars.
The statute lying at the basis of the suit provides “that whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case the person who or the corporation which would have been liable if death had not ensued, shall be liable to an action of damages notwithstanding the death of the person injured,” etc. Gen. Stat., p. 1188, § 10.[[239]]