Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-03-06

lis hcr { aadc1st 10 tse srs.s ys& rs me "a teSa
ease OF thesA fi4 II seven wears Of azs
got upon 3Ae ~ ia Giss; anethsr eaiid Isd Sc
kgrse on, ana lhe p.sint.t IN gstt.hs og fell and
was ran oven aud hsd hisies broken Il was hell
thalPi4iHfTf was sssi; led - rero,er uosv1hstan
Tag thai, by hisppsitive Ere in getting uv0sIhs
ear he v : the cl>9Psraisg cause ef his Ass mis-
fortune. Lore Deamaa vas cf tise pvinion tbst ne
greater degree CT csTe 10 BE- re. iulred Of him
tban was con eisA his sEe and capacity: and
4 tat il iu- gstIasCR the cart he merely INDUCED
tbs HsiaTel .astinc. 0f child, in smtsing hinseF
With the empty cart, the lsfsndant-e3uld ret AVA;
\ himself of tlst -fac; sHe1 asthe mssE blameaAis-
caJlsssness OF TIE ssryeHt tempted The csii ne Ess
the red and on'y essse ef the HGssiief 50. in II
! iidge Vs. Goodwin. , 6 & 2. 80, the 6stcRdants
cart eudhorse were left in the street unattended,
/ and person passing hy whipped the heTss, and
estrsed Hl 50 sack the sgainst the plainttf's
wiDdos; il held that Ihe deicad Was liable
4 Tfnds5 G. J ;, said, s'ig man chooses TO leave
cart Standing in the street, be Se the risk Of
any mischief THAI may be d0ps;" and hist the
wrongful aetof the person 10 whipping The horse,
8as ne -dsfeGSe. e. 1 -DixoH Bell, NJ & 8 1875.
the defendant sansa sersa1i girl i5 years OF age,
to bring tOsGied gun VISA direction 60 the FersOR
IN whose possession i VAS, u take sUl the priaing
which he did. and the girl in hlay polns5t TIE gun
. At plaiaiisf sSoa, ehIld OF some er years Of
age, and, Drawing the trigger, i vent of and in
jured the child. Lord Eilsuboroi gh held. that by
the sea SAINTS neglect to discharge the gan lie had
left it ip a state capabls OF doing aiscbief and sse
Law therefOre held hin responsible. In R0binsOa !
Core D. Vermont Rep PA, child Of less than
four years OF age. vas an1ri1g himself sliding
-doHn hill, in ths public higagsy- The defeniahi Z
vas driving sleigh rapidly dOSH the hill, and che
planIts left leg caught enc OF the rnnEers of
the sleigh, aud fraatured TO require amputa>
tien. ln answer 20 the argument, thal the injury %
the plaintiff vas eaased by his Owa negligence and 7
wrong, the court said; Oh st although ehd CT ten
der years be in the highway, through the fault or
.,eb ..~A
there, ye if he be injured through the negligence
Of the liant, he is Tot precluled from redress;
that IN susa case the defendant IS bum 70 pro-
portioEaf degree Of watohfulHess; and what would
be but ordinary neglect, u regasd 10 El0m the
defendant supposs d person OF full age and eapaei
ty, vould be gross neg!ect "a 20 a child, or one
known 10 be incapable Of esesIipg danger. Bass
" LittOn, II P i07. And that child Of tens
der years. is nos bouBdtO he same rule Of care and
diligence, in avoiding te cOnsequen,e Of the neg
lect OF others which is required OF persons Of frl
age That al thai is demanded in such cases, Is
degree Of or diligence equal TO the capacity OF
t1e child
SO where the defendln had gate upon his own
land, through which the Plaintiff q chi Of six or
seven years, aud other children were accustomed to
pass; aud the plaintiff in passing, WithoU. license,
IhOok the gate, and it fell upon him aad broke his
eg the defendant was held liable. 10 Conn. Rep.
These cases rest upoa the principle, that the Law
imposes restrictions upon every enc, we'll 10 the
ise and enjoyment C bis property, as in his person
Il actions and conduct, and that, though may
10 a lawful thicg vet, if any dam4gs thersSy b.
ais another, he snail e ARswerahle, if he might
AVE avoided it. Bro1m's Legal Maxims, 24s ,
The d5erine Of these eases is net in eOnh ct with
he general principle, that person shall BOi FeeOT
7 for an injury brought upon binself by his own
Tant Of reasonable aad prudencs; CT which his
rant Of ordinary care eoBtribnted'to preduc or
There the PARTIES must be viewed equally eHlpa-
able Il is but qualification OF. the priseiple,
0uhded uPOn Just distinction Both parties may
e in faul in omitlag the exercise Of prOl ler diIiS
enee but not equally 40, either rs respects The de
rec Of Negligence, or the capacity neotal or pays
c4l 10 hags prevented or escaped the iPjary. Aud,
berefore. he slali DC considered the author OF the
lIsohisf by whose first more gr negligence it
Ils been ttfee-e1
In trials by jury the court is to decide questions
4 law, ard Ihs jury questions OF fact Nhsl are q
allied mixed questions, consisting Of both law aud
sot, questions in respe5t 20 the degree OF care,
k'l diligence, &C., required hy law ia particular
ases, 10 be submitted to the jury under proper
1struc0Es frJm the codri 10 the rules and PFin- =
iPes Of laW by which they to be governed in Ia
heir determination OF the The truth of the =
les snd circumstances offered in evidence 10 sur l.
ort Of tn allegations on tie reeorl must be de 70
E1ined by tie jury Bat il is FOR court 10 de "a
ide whether or net these fac.s aRi circumstance a
found by The Jury 10 be true are sufficient, in m
ont C law, 10 maiutAin the allegations in the 10
lsadiDgs, and this must be done Ia of tGo med g.
iiher the court must aform the Jury, hypotheti-
ally, whether not the facts Ehi.E The evidence "
The doctrine has been carried further IN class ~
cases gad to ths extent, that eyen Wilfuf mig CT
oniuct, on tne part Of The plaintiff will rot Deees n
lry exclude him from he right II sue, as in cases
here sprug-guns aud dangerous instrum snts have
ecu set upon Oae's ground for the protection fs
I his property; aud persons with ut not ee, by -
gou the gi"unas ave been serious in ar
lred The Iss OF B,rdys. HslerJok, 4 Bng G28, ds
illustration OfIke apple ii1n Of the doc rins
d that case the defendant set spring qua, without
office, 10 q walled g9rde1 at di5'aaee from his v
oLse, for the protection Of his property, some Of -
hich had beea stolen; aHd the plaintiff, Who n
mbed over the wall ia pursuit. Of = stray fowl, -
ayiDg been shot aud seriously iEjared the defend
ut was held able. "
But. it is unnecessary for TO refer to other
anses upon this subject We feel e'elr, upon the - =
.cs proved in this ee0rd thai the defendants we're 10
uilty of negligenee-perb it might be said, OF
ross negl igence-in leaving tho machinery 80 ex-
osed asihat by possibility it might be ths cause -
finjury 20 others. Aad neither the negligence Of
ls parent, in suffering the child 10 play about the
ILL nor he supposed wrongful act OF the Psin'it
imself in tresps' sing upon the defendants pro-
erty can excuse them from liability. 10 playing I N
bout the eogWheels the plaintiff was "but indulg>
" the natural instinct of child" but yielding =
the temptation into which he was led by the neg 81
genee Of the defendants. u
AID We think it was the duty Of the Court to %
ave ins rue. ed the jury specially, IS matter Of
~, that the facts stated, if true constituted that
egree Of negligence which would render the de-
,ndants liable in damages. =
Judgmen, reversed. dCkINSEH.
A true copy: J. P. Clark, Clerk.