Rosenberg v. Durfee

Citations

• 87 Cal. 545
• 26 P. 793
• 1891 Cal. LEXIS 1021

Syllabus

<p>Negligence — Inducing Child to Ride upon Sweep.— Liability of Person in Charge. .— Inviting and permitting a child eight years old to ride alone, in circumstances of danger, upon a sweep or pole drawn by a horse, and used to propel machinery for pumping water, in consequence of which the child is injured, is negligence on the part of the person in charge of the sweep.</p> <p>Id. —Liability of Owner of Sweep. —A verdict against the owner of the sweep will he sustained if it appears that he, knowing that his son was in charge of the sweep at the time of the injury, and that the child was riding upon the sweep alone, in circumstances of danger, at the request of his son, permitted her to remain thus exposed, when he could have prevented it, though he may have cautioned the child to he careful, and though the child may have said there was no danger.</p> <p>Id.—Indulgence op Child—Motive Immaterial.—The fact that the child was a favorite with the owner of the machine and his son, and that their want of care was the result of a desire to be indulgent to her, does not excuse them from exercising the care required by law to prevent the child from placing herself in danger.</p> <p>Id. — Contributory Negligence of Child.—Instruction.—An instruction to the jury “that a child of such tender years and immature judgment as to be incapable of knowing, comprehending, and measuring the danger to which it is exposed, and of exercising the necessary precaution in guarding against it, cannot be charged with negligence in exposing itself to the threatened danger,” and that in determining the question in connection with the case, they “ must consider the age and sex, and all the conditions surrounding the plaintiff at the date of the injury, as disclosed by the evidence,” is proper, and does not assume that the machinery causing the injury was dangerous, or tend to mislead the jury upon the question of contributory negligence.</p> <p>Id.— Instruction as to Evidence of Negligence. —An