§ 1045. The application of the doctrine of contributory negligence to those non sui juris. The question is, can those non sui juris be guilty of contributory negligence. Upon this there is a great variety of judicial opinion. Some cases hold arbitrarily that a child not having attained its majority, but having reached that age when it is capable of the commission of a crime, can be guilty of contributory negligence.429 Other cases determine the question according to the facts as they appear from the evidence of a particular case. The age, intelligence, knowledge of danger, mode or condition in life, and other material facts are all taken into consideration and a decision is reached accordingly.430 In another section it was stated that the duty of a public corporation in respect to its public highways existed only in favor of those using the highway for a proper purpose and as an illustration of an improper purpose, that of using them for play grounds or for loafing, was given.431 In the case of young children especially, this rule is very materially relaxed and it is quite generally held that it is not negligence per se for young 429 Tucker v. New York Cent. & H. R. R. Co., 124 N. Y. 308; Nagle V. Allegheny Valley R. Co., 88 Pa. 35; Thompson, Neg. §§ 306-318. 430 City of Denver v. Murray, 18 Colo. App. 142, 70 Pac. 440; City of Chicago v. McCrudden, 92 Ill. App. 257. Girl of twelve walking backwards was injured; not guilty of contributory negligence as a matter of law. City of Chicago v. O'Malley, 95 Ill. App. 355; Casey v. City of Malden, 163 Mass. 507, 40 N. E. 849. Boy nine or twelve of average intelligence injured when walking backwards, guilty of contributory negligence. Snow v. Inhabitants of Provencetown, 120 Mass 580; Gulline v Lowell, 144 Mass. 491; Casey v. City of Malden, 163 Mass. 507, 40 N. E. 849; King v. Colon Tp., 125 Mich. 511, 84 N. W. 1077. Girl of fourteen held guilty of contributory negligence. Hudon v. City of Little Falls, 68 Minn. 463, 71 N. W. 678. Boy of sixteen chargeable with contributory negligence. Stern v. Bensieck, 161 Mo. 146, 61 S. W. 594; Bresnehan v. Gove, 71 N. H. 236, 51 Atl. 916; Brennan v. City of New York, 67 Hun, 648, 22 N. Y. Supp. 304. Boy of twelve held guilty of contributory negligence. Crawford v. Wilson & B. Mfg. Co., 8 Misc. 48, 28 N. Y. Supp. 514; Brown v. City of Syracuse, 77 Hun, 411, 28 N. Y. Supp. 792; Ward v. City of New York, 19 App. Div. 48, 45 N. Y. Supp. 891. Boy of thirteen chargeable with contributory negligence. Storey v. City of New York, 29 App. Div. 316, 51 N. Y. Supp. 580; Lorence v. City of Ellensburgh, 13 Wash. 341, 43 Pac. 20; Eskildsen v. Seattle, 29 Wash. 583, 70 Pac. 64. 431 City of Whitewright v. Taylor, 23 Tex. Civ. App. 486, 57 S. W. 311. See § 992, ante. children to use the streets, particularly sidewalks, for purposes of play.432 The questions of negligence or contributory negligence, depend, as stated many times, upon the circumstances in a particular case. Children must have opportunities for play and fresh air. In crowded localities, the public highways afford them their only means of recreation. Clearly, under these conditions, they should not be held guilty of contributory negligence in the use of public highways for this purpose.433 § 1046. Duty of the traveler in respect to the use of highways. The duty of the puble corporation in respect to the care of its highways is only that of exercising reasonable care and diligence in constructing and maintaining them in a condition fit for proper use by those entitled to the privilege.** On the other hand the duty of the traveler in respect to the use of highways is only that of ordinary care under existing circumstances.435 This duty is invariable and if, apparently, it changes, it is not because of a change of principle but on account of altered conditions and cir 432 City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S. E. 389; Gulline v. City of Lowell, 144 Mass. 491, 11 N. E. 723; Arnold v. City of St. Louis, 152 Mo. 173, 53 S. W. 900, 48 L. R. A. 291; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733. See, also, cases cited generally under this section. 433 City Council of Augusta v. Tharpe, 113 Ga. 152, 38 S. E. 389; City of Flora v. Pruett, 81 Ill. App. 161. Question for the jury. Caskey v. La Belle, 101 Mo. App. 590, 74 S. W. 113; Straub v. St. Louis, 175 Mo. 413, 75 S. W. 100; Reed v. City of Madison, 83 Wis. 171, 53 N. W. 547, 17 L. R. A. 733. 434 See §§ 988, 1014, and 1024, ante. 435 Anderson v. City of Wilmington, 2 Pen. (Del.) 28, 43 Atl. 841; Branan v. May, 17 Ga. 136; Town of Wheaton v. Hadley, 131 Ill. 640, 23 N. E. 422; City of Rockford v. Hollenbeck, 34 Ill. App. 40; City of Beardstown v. Smith, 150 Ill. 169, 37 N. E. 211; City of Huntington v. McClurg, 22 Ind. App. 261, 53 N. E. 658; McQueen v. City of Elkhart, 14 Ind. App. 671, 43 N. E. 460; Langhammer v. City of Manchester, 99 Iowa, 295, 68 N. W. 688; City of Osborne v. Hamilton, 29 Kan. 1; Kansas City v. Manning, 50 Kan. 373, 31 Pac. 1104; Kansas City v. McDonald, 60 Kan. 481, 57 Pac. 123, 45 L. R. A. 429; Griswold v. City of Ludington, 116 Mich. 401; Williams v. City of Hannibal, 94 Mo. App. 549, 68 S. W. 380; Brown v. Town of Swanton, 69 Vt. 53, 37 Atl 280; Griffon v. Town of Willow, 43 Wis. 509; Duthie v. Town of Washburn, 87 Wis. 231, 58 N. W. 380; Rhyner v. City of Menasha,. 107 Wis. 201, 83 N. W. 303 cumstances. From the statement above, it is evident that the duty of each, that is, the public corporation and the traveler, is to exercise ordinary care and diligence and is, therefore, equal, but from the decisions it will be observed that a slightly greater and higher duty is placed upon the public corporation, especially municipal corporations proper.436 The ordinary care required of the traveler is measured at all times by the dangers to be avoided.437 § 1047. Presumption of care. The principle is well established that the traveler using a highway for a proper purpose in the absence of knowledge of the defect may lawfully presume that the public corporation has exercised, in respect to the condition of a highway which he is using, that degree of care which the law imposes upon it.438 He is not bound, therefore, to be constantly on guard against defects which 436 Lyman v. City of Green Bay, 91 Wis. 488, 65 N. W. 167. 437 Swart v. District of Columbia, 17 App. D. C. 407; Collins v. City of Janesville, 107 Wis. 436, 83 N. W. 695; Rhyner v. City of Menasha, 107 Wis. 201, 83 N. W. 303. 438 City of Birmingham v. Tayloe, 105 Ala. 170, 16 So. 576; Wilkins v. City of Wilmington, 2 Marv. (Del.) 132, 42 Atl. 418; Carswell v. City of Wilmington, 2 Marv. (Del.) 360, 43 Atl. 169; City of Salem v. Webster, 192 Ill. 369, 61 N. E. 323, affirming 95 Ill. App. 120; City of Spring Valley v. Gavin, 81 Ill. App. 456; Strehmann v. City of Chicago, 93 Ill. App. 206; City of East Dubuque v. Burhyte, 173 Ill. 553, 50 N. E. 1077; Allen County Com'rs v. Creviston, 133 Ind. 39, 32 N. E. 735; Lyon v. City of Logansport, 9 Ind. App. 21, 35 N. E. 128; Citizens' St. R. Co. v. Ballard, 22 Ind. App. 151, 52 N. E. 729; City of Indianapolis v. Gaston, 58 Ind. 224; Atchison v. Plunkett, 8 Kan. App. 308, 55 Pac. 677; Buck v. City of Biddeford, 82 Me. 433, 19 Atl. 912; Perrette v. Kansas City, 162 Mo. 238, 62 S. W. 448; Mahnken v. Chosen Freeholders of Monmouth County, 62 N. J. Law, 404, 41 Atl. 921; Turner v. City of Newburg, 109 N. Y. 301, 16 N. E. 344; Sherman v. Village of Oneonta, 66 Hun, 629, 21 N. Y. Supp. 137; Laverdure v. City of New York, 28 App. Div. 65, 50 N. Y. Supp. 882; Neal v. Town of Marion, 129 N. C. 345, 40 S. E. 116; Heckman v. Evenson, 7 N. D. 173, 73 N. W. 427; Hardin County Com'rs v. Coffman, 60 Ohio St. 527, 54 N. E. 1054, 48 L. R. A. 455; Glidden v. Town of Reading, 38 Vt. 52; Gordon v. City of Richmond, 83 Va. 436, 2 S. E. 727; Wall v. Town of Highland, 72 Wis. 435, 39 N. W. 560; McClure v. City of Sparta, 84 Wis. 269, 54 N. W. 337; Collins v. City of Janesville, 111 Wis. 348, 87 N. W. 241, 1087. But the presumption is overcome by a knowledge of the defect. But see Lyons v. City of Red Wing, 76 Minn. 20. may cause him an injury. This presumption applies to all travelers using the highway and at all times when they can be lawfully used including both night and day.439 The presumption does not,. however, operate to relieve him from the performance of his duty to use ordinary care and the traveler further can rely upon the principle only in the absence of knowledge on his part of the defect and when the danger is not an obvious and notorious one.* 440 § 1048. Vigilance in discovering defects. As stated in the preceding section, the traveler may presume on his part the exercise of the duty imposed upon the public corporation whatever it may be and he is not, therefore, obliged to exercise more than ordinary vigilance for the purpose of discovering defects. He is not required to be constantly on the alert or keep his eye continually upon the roadway for this purpose.441 As already suggested, defects may be either patent or latent. Where a defect is open and easily discovered, the traveler cannot, acting upon the presumption which exists in his favor, run blindly into it. In so doing the courts hold that he will not be exercising ordinary care.442 Where the defect, however, is a latent one, the duty im 439 Robinson v. City of Wilmington, 8 Houst. (Del.) 409, 32 Atl. 347. But see City of Guthrie v. Swan, 3 Okl. 116, 41 Pac. 84. 440 City of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; City of Galesburg v. Hall, 45 Ill. App. 290; City of Sumner v. Scaggs, 52 Ill. App. 551; Benedict v. City of Port Huron, 124 Mich. 600, 83 N. W. 614; Crowe v. City of Seattle, 22 Wash. 659, 62 Pac. 121. 441 City of Centralia v. Baker, 36 Ill. App. 46; City of Bluffton v. McAfee, 23 Ind. App. 112, 53 N. E. 1058; Barnes v. Town of Marcus, 96 Iowa, 675, 65 N. W. 984; Baxter v. City of Cedar Rapids, 103 Iowa, 599, 72 N. W. 790; Topeka Water Co. v. Whiting, 58 Kan. 639, 50 Pac. 877, 39 L. R. A. 90; Russell v. Town of Monroe, 116 N. C. 720, 21 S. E. 550; Dean v. City of New Castle, 201 Pa. 51, 50 Atl. 310; Butcher v. City of Philadelphia, 202 Pa. 1, 51 Atl. 330; Brown v. White, 202 Pa. 297, 51 Atl. 962, 58 L. R. A. 321; City of Dallas v. Webb, 22 Tex. Civ. App. 48, 54 S. W. 398; Gordon v. City of Richmond, 83 Va. 436, 2 S. E. 727. 442 Sutphen v. Town of North Hempstead, 80 Hun, 409, 30 N. Y. Supp, 128; Benton v. City of Philadelphia, 198 Pa. 396, 48 Atl. 267; Robb v. Borough of Connellsville, 137 Pa. 42, 20 Atl. 564; Nicholas v. Peck, 20 R. I. 533, 40 Atl. 418; Cantwell v. City of Appleton, 71 Wis. 463, 37 N. W. 813. Question for the jury. See, also, § 1051, post and cases cited. posed upon him does not require him to exercise such vigilance as to enable him to detect it and avoid injury.443 § 1049. Diverted attention. The exercise of ordinary care on the part of the traveler, further, does not require him to be continually on the lookout for defects whether open and notorious or latent. If his attention is, momentarily, diverted and in so doing, he is injured by a defect which he could have avoided if his attention had been at that moment directed to it, it will not be regarded as contributory negli gence. The character of or a knowledge of the defect largely controls, however, the application of this principle. It may be so notorious and of such a dangerous nature or so well known that the principle of momentarily diverted attention will not relieve him from the charge of contributory negligence.445 444 443 City of Kokomo v. Boring, 24 Ind. App. 552, 57 N. E. 202; Hall v. Town of Manson, 99 Iowa, 698, 68 N. W. 922, 34 L. R. A. 207; Cox v. City of Des Moines, 111 Iowa, 646, 82 N. W. 993; Atchison v. Plunkett, 8 Kan. App. 308, 55 Pac. 677; Moore v. City of Huntington, 31 W. Va. 842, 8 S. E. 512; Phillips v. City of Huntington, 35 W. Va. 406, 14 S. E. 17. 444 City of Birmingham v. Starr, 112 Ala. 98, 20 So. 424; Barry v. Terkildsen, 72 Cal. 254, 13 Pac. 657; City of Nokomis v. Salter, 61 Ill. App. 150; City of Maysville v. Guilfoyle, 110 Ky. 670, 62 S. W. 493; Flynn v. Inhabitants of Watertown, 173 Mass. 108, 53 N. E. 147; Coffin v. Inhabitants of Palmer, 162 Mass. 192, 38 N. E. 509; Maloy v. City of St. Paul, 54 Minn. 398, 56 N. W. 94; City of Meridian v. McBeath, 80 Miss. 485, 32 So. 53; O'Reilly v. Village of Sing Sing, 48 Hun, 618, 1 N. Y. Supp. 582; Butch er v. City of Philadelphia, 202 Pa. 445 City of Plymouth v. Milner, 117 Ind. 324, 20 N. E. 235; Lichtenberger v. Town of Meriden, 91 Iowa, 45, 58 N. W. 1058. The question may be one for the jury to determine. Walker v. Town of Reidsville, 96 N. C. 382, 2 S. E. 74. |