Negligence. Jennings v. Rundall, 8 T. R. 335; Dixon v. Bell, 1 Stark. 287; Marsh v. Loader, 14 C. B. N. S. 535; Latt v. Booth, 3 Car. & K. 292; Humphrey v. Douglass, 10 Vt. 71 Accord.
In Scott v. Watson, supra, Appleton, J., said: “Nor is his infancy any defence, for infants are liable for torts.... The parent is not answerable for the torts of his minor child, committed in his absence and without his authority or approval, but the minor is answerable therefor. Tifft v. Tifft, 4 Denio, 177. The minor is not exempt from liability, though the trespass was committed by the express command of the father. Humphrey v. Douglass, 10 Vt. 71.
“Nor can the defendant derive any support from the scriptural injunction to children of obedience to their parents, invoked in defence. No such construction can be given to the command, ‘Children, obey your parents in the Lord, for this is right,’ as to sanction or justify the trespass of the son upon the land of another, and the asportation of his crops, even though done by the express commands of his father. The defence is as unsound in its theology as it is baseless in its law.” [Smith v. Kron, 96 N. C. 392, 397; O’Leary v. Brooks, 7 N. D. 554; Humphrey v. Douglass, 10 Vt. 71; Huchting v. Engel, 17 Wis. 230 Accord.]
May, J., dissented, saying: “I am not quite satisfied with either the law or the theology of the opinion in this case. That sins of ignorance may be winked at, is both a dictate of reason and of Scripture. It is true, as a general rule, that infants who have arrived at the age of discretion are liable for their tortious acts. But, for the protection of infants, ought not the rule to be limited to cases where the infant acts under such circumstances that he must know or be presumed to know that the acts which he commits are unauthorized and wrong, when it appears that in the commission of the acts he was under the control and direction of his father? Will not an opposite doctrine tend to encourage disobedience in the child, and thus be subversive of the best interests of the community? Will it not also tend to subject him to embarrassment and insolvency when he shall arrive at full age? If all the members of a family under age are to be held liable in trespass or trover for the food which they eat, when that food is in fact the property of another, but, being set before them, they partake of it, in ignorance of such fact, by the command or direction of the parent, and under the belief that it is his, will not such a doctrine be in conflict with the principle that the common law is intended as a shield and protection against the improvidence of infancy? While the decided cases upon this subject seem to be limited to cases of contract, is there not the same reason for extending it, and applying it to cases like the one before us? In all the cases which I have examined in which infants have been held liable, the proof shows acts of positive wrong committed under circumstances where the infant must have known the nature and character of his acts. If the doctrines of the opinion are to prevail in a case like this, then the common law is but the revival of the old doctrine that the parents, by eating sour grapes, have set the children’s teeth on edge. The rule that a servant who acts in ignorance of the rights of his principal is to be held liable for his acts, does not fall within the principles for which I contend.”
[90]. Welch v. Durand, 36 Conn. 182; Flinn v. State, 24 Ind. 286; Peterson v. Haffner, 59 Ind. 130; Mercer v. Corbin, 117 Ind. 450; Commonwealth v. Lister, 15 Phila. 405; Vosburg v. Putney, 80 Wis. 523; Vosburg v. Putney, 86 Wis. 278 Accord.
[91]. The topics dealt with in this section do not concern the substantive law of tort. They fall rather under the heads of procedure and evidence. But, without some knowledge of these particular subjects, it is difficult to understand the ground of decision in some of the cases on the general subject of negligence.
[92]. Statement, arguments, and parts of opinions omitted.
[93]. This decision and Bridges v. North London R. Co., L. R. 7 H. L. 213, put an end in England to a conflict of authority as to the power of the judge to withdraw the case from the jury where there was an “invitation to alight” or “slamming the door” of a compartment car. See the cases cited in 21 Halsbury, Laws of England, 445.
A like question, much discussed in the United States, is: A man, without looking or listening, attempts to cross the track of a steam railway, and is hit by a negligently managed engine. Should the judge rule that crossing without looking and listening (or crossing without stopping, looking, and listening) is, as matter of law, negligent conduct? Or should the judge tell the jury that such conduct is evidence from which negligence may be inferred, and that it is for them to say whether they do infer it? As to this, there is a conflict of authority. See discussion and collected cases in 3 Elliott on Railroads (1st ed.) § 1167; 2 Thompson, Commentaries on the Law of Negligence, Chap. 52, Article 2, §§ 1637–1661, especially §§ 1640, 1649, 1650, 1653; 33 Cyc. 1116 ff.; Beach on Contributory Negligence (3d ed.) §§ 181, 182.
Other like questions arise in case of alighting from a moving car: Puget Sound R. Co. v. Felt, 181 Fed. 938; Birmingham R. Co. v. Girod, 164 Ala. 10; St. Louis R. Co. v. Plott, 108 Ark. 292; Carr v. Eel River R. Co., 98 Cal. 366; Coursey v. Southern R. Co., 113 Ga. 297; Ardison v. Illinois R. Co., 249 Ill. 300; Louisville R. Co. v. Crunk, 119 Ind. 542; Walters v. Missouri R. Co., 82 Kan. 739; Hayden v. Chicago R. Co., 160 Ky. 836; Cumberland R. Co. v. Maugans, 61 Md. 53; Street v. Chicago R. Co., 124 Minn. 517; Johnson v. St. Joseph R. Co., 143 Mo. App. 376; Willis v. Metropolitan R. Co., 63 App. Div. 332; Pennsylvania R. Co. v. Lyons, 129 Pa. St. 113; Kearney v. Seaboard R. Co., 158 N. C. 521; San Antonio Traction Co. v. Badgett, (Tex. Civ. App.) 158 S. W. 803; Gaines v. Ogden R. Co., 44 Utah, 512; Breeden v. Seattle R. Co., 60 Wash. 522.