On Rehearing.
The opinion of the court was delivered by
McEnery, J.
The plaintiffs, father and mother of a boy, Richard, aged 5 years and 7 months, brought this suit under Act 71 of 1884 for damages for the death of their son, caused by a large iron roller left by the defendants opposite to the residence of plaintiffs, and a very short distance from it. The residence was located on St. Mary street, corner of Coliseum.
The defendants, under a contract with the city of New Orleans, were engaged in placing gravel on Coliseum street.
The defendants plead a general denial, and specially aver that they had never been in fault, nor had the minor child Richard, nor had the plaintiffs ever suffered any damage or injury by their fault.
And they further allege that, if said boy Richard was injured and [66]*66their employees were negligent, they are not responsible in damages, as the boy Richard was guilty of contributory negligence. They allege neglect on the part of plaintiffs as contributing to the accident. And they also allege that they were not present when the accident occurred, and are therefore not responsible.
There was judgment for the defendants, from which the plaintiffs have appealed.
The damages allowed in case of death by the Act 71 of 1884 consist of two elements:
1. The right of action for the damages suffered by the child, and which passes to the surviving parent by inheritance.
2. The action for the damages suffered by the parent on account of the loss of the child.
The plaintiffs inherit this action for damages suffered by the child from him, and it must be treated as though the child was alive and suing for an injury to himself.
The question on this branch of the case therefore is one of contributory negligence on the part of the child.
For the purpose of leveling and grading Coliseum street the defendants used heavy iron rollers, with two mules attached. One of them was left unattended, the mules not hitched so as to prevent them from moving off with the roller; and the roller unfastened by a chain, although it was capable of being so secured so as to prevent the rotation of the cylinder at little inconvenience and an inconsiderable cost.
Since this accident the rollers have had chains attached to them, so as to secure them. The roller was a dangerous machine of that character which would attract the instinctive curiosity of children. The boy Richard escaped from the residence of his parents, got on the roller, started the mules, and was -thrown from it and under it, and mortally injured.
The testimony clearly establishes the negligence of the defendants in leaving the roller unattended, the mules unhitched and the roller unsecured by a chain.
The driver in charge of the machine, and who abandoned it (unattended as stated), was in the employment of defendants, and the. machine was left by him in the course of his employment.
The defendants are therefore responsible in damages for the injury [67]*67to the child Richard unless they are relieved by contributory negligence on his part.
Article 84 of the Civil Code says: “Age forms a distinction between those who have not sufficient reason and experience to govern .themselves and to be masters of their-own conduct. But as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently advanced in life to be capable of contracting marriage and other obligations.”
This article applies to civil obligations. But it recognizes the difference in the maturity and strength of judgment of children of the same age, and the necessity, as a matter of public policy, of fixing the period at which responsibility shall commence.
There is, however, no statutory period fixed at which this responsibility shall commence.
Under the common law a child under 7 years of age is presumed to be incapable of committing a crime, and between seven and fourteen his capacity requires to be affirmatively proved. Under seven the presumption is absolute as to the infant’s incapacity to commit, crime.
Children are, in the first year of their existence, non sui juris.
Under the Roman law several degrees of infancy are recognized. The first is absolute infancy, in the literal sense speechless; after that, until the age of seven, a child is infantile proximus; and from the eighth year to puberty he is pubertati proximus.
The child’s responsibility, in American jurisprudence, for its acts,, is a question of capacity, and it has been found a difficult question, and has been in many courts a very fruitful source of controversy as to what age is sufficient to constitute a child sui juris.
Where there is no doubt as to the capacity of the child at one extreme or the other to avoid danger, the court will decide it as a matter of law- Thus courts have held as a matter of law children of various ages, from one year and five months to seven years, non sui juris. Beach on Contributory Negligence, par. 39, p. 120; 2 Thompson on Negligence, par. 81, p. 1180.
In the ease of Hatfield vs. Raper, 21 Wendell 615, it was held that when a child of such tender years as not to possess sufficient discretion to avoid danger, is permitted by its parents to be in a public highway without any one to guard it, and is there run over by a [68]*68traveler and injured, neither trespass nor case will lie unless the injury be voluntary or the result of “ gross neglect ” on the part of such traveler. In an action for such injury, if the conduct of the child be such as would constitute negligence on the part of the adult, although the child by reason of its tender years be incapable of using that degree of care which is expected of a person of prudence, the want of such care on the part of the parents or guardians of the child furnishes a complete defence to an action by the child for the injury sustained. Thompson on Negligence, p. 1184.
This rule has been adopted by the courts of last resort in some of the States, and has been denied in others.
We can not sanction this doctrine, and prefer to adopt, as more in accordance with our system of jurisprudence, the rule adopted by these courts of last resort which have denied the rule in that case.
In Thompson on Neglgence, Vol. 2, p. 1192, the correct rule is stated as follows:
“Therefore where the circumstances of the case do not justify the imputation' of negligence on the part of others, or in jurisdiction where implied negligence is not applied, the only question in the case is whether the defendant has been guilty of ;any negligence which may be reasonably said to have been the cause of the injury. * * Tf, however, the child is old enough to have some perception of danger, and capable of exercising other faculties for its self-preservation, it is held bound to do so, but only as effectually as can be reasonably expected of a child of its maturity and capacity.”
The boy Richard was of that age according to the Roman law which placed him nearer to the line of the first stage of infancy than puberty.
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On Rehearing.
The opinion of the court was delivered by
McEnery, J.
The plaintiffs, father and mother of a boy, Richard, aged 5 years and 7 months, brought this suit under Act 71 of 1884 for damages for the death of their son, caused by a large iron roller left by the defendants opposite to the residence of plaintiffs, and a very short distance from it. The residence was located on St. Mary street, corner of Coliseum.
The defendants, under a contract with the city of New Orleans, were engaged in placing gravel on Coliseum street.
The defendants plead a general denial, and specially aver that they had never been in fault, nor had the minor child Richard, nor had the plaintiffs ever suffered any damage or injury by their fault.
And they further allege that, if said boy Richard was injured and [66]*66their employees were negligent, they are not responsible in damages, as the boy Richard was guilty of contributory negligence. They allege neglect on the part of plaintiffs as contributing to the accident. And they also allege that they were not present when the accident occurred, and are therefore not responsible.
There was judgment for the defendants, from which the plaintiffs have appealed.
The damages allowed in case of death by the Act 71 of 1884 consist of two elements:
1. The right of action for the damages suffered by the child, and which passes to the surviving parent by inheritance.
2. The action for the damages suffered by the parent on account of the loss of the child.
The plaintiffs inherit this action for damages suffered by the child from him, and it must be treated as though the child was alive and suing for an injury to himself.
The question on this branch of the case therefore is one of contributory negligence on the part of the child.
For the purpose of leveling and grading Coliseum street the defendants used heavy iron rollers, with two mules attached. One of them was left unattended, the mules not hitched so as to prevent them from moving off with the roller; and the roller unfastened by a chain, although it was capable of being so secured so as to prevent the rotation of the cylinder at little inconvenience and an inconsiderable cost.
Since this accident the rollers have had chains attached to them, so as to secure them. The roller was a dangerous machine of that character which would attract the instinctive curiosity of children. The boy Richard escaped from the residence of his parents, got on the roller, started the mules, and was -thrown from it and under it, and mortally injured.
The testimony clearly establishes the negligence of the defendants in leaving the roller unattended, the mules unhitched and the roller unsecured by a chain.
The driver in charge of the machine, and who abandoned it (unattended as stated), was in the employment of defendants, and the. machine was left by him in the course of his employment.
The defendants are therefore responsible in damages for the injury [67]*67to the child Richard unless they are relieved by contributory negligence on his part.
Article 84 of the Civil Code says: “Age forms a distinction between those who have not sufficient reason and experience to govern .themselves and to be masters of their-own conduct. But as nature does not always impart the same maturity and strength of judgment at the same age, the law determines the period at which persons are sufficiently advanced in life to be capable of contracting marriage and other obligations.”
This article applies to civil obligations. But it recognizes the difference in the maturity and strength of judgment of children of the same age, and the necessity, as a matter of public policy, of fixing the period at which responsibility shall commence.
There is, however, no statutory period fixed at which this responsibility shall commence.
Under the common law a child under 7 years of age is presumed to be incapable of committing a crime, and between seven and fourteen his capacity requires to be affirmatively proved. Under seven the presumption is absolute as to the infant’s incapacity to commit, crime.
Children are, in the first year of their existence, non sui juris.
Under the Roman law several degrees of infancy are recognized. The first is absolute infancy, in the literal sense speechless; after that, until the age of seven, a child is infantile proximus; and from the eighth year to puberty he is pubertati proximus.
The child’s responsibility, in American jurisprudence, for its acts,, is a question of capacity, and it has been found a difficult question, and has been in many courts a very fruitful source of controversy as to what age is sufficient to constitute a child sui juris.
Where there is no doubt as to the capacity of the child at one extreme or the other to avoid danger, the court will decide it as a matter of law- Thus courts have held as a matter of law children of various ages, from one year and five months to seven years, non sui juris. Beach on Contributory Negligence, par. 39, p. 120; 2 Thompson on Negligence, par. 81, p. 1180.
In the ease of Hatfield vs. Raper, 21 Wendell 615, it was held that when a child of such tender years as not to possess sufficient discretion to avoid danger, is permitted by its parents to be in a public highway without any one to guard it, and is there run over by a [68]*68traveler and injured, neither trespass nor case will lie unless the injury be voluntary or the result of “ gross neglect ” on the part of such traveler. In an action for such injury, if the conduct of the child be such as would constitute negligence on the part of the adult, although the child by reason of its tender years be incapable of using that degree of care which is expected of a person of prudence, the want of such care on the part of the parents or guardians of the child furnishes a complete defence to an action by the child for the injury sustained. Thompson on Negligence, p. 1184.
This rule has been adopted by the courts of last resort in some of the States, and has been denied in others.
We can not sanction this doctrine, and prefer to adopt, as more in accordance with our system of jurisprudence, the rule adopted by these courts of last resort which have denied the rule in that case.
In Thompson on Neglgence, Vol. 2, p. 1192, the correct rule is stated as follows:
“Therefore where the circumstances of the case do not justify the imputation' of negligence on the part of others, or in jurisdiction where implied negligence is not applied, the only question in the case is whether the defendant has been guilty of ;any negligence which may be reasonably said to have been the cause of the injury. * * Tf, however, the child is old enough to have some perception of danger, and capable of exercising other faculties for its self-preservation, it is held bound to do so, but only as effectually as can be reasonably expected of a child of its maturity and capacity.”
The boy Richard was of that age according to the Roman law which placed him nearer to the line of the first stage of infancy than puberty. But he evidently had attained that degree of maturity where he was capable of some slight degree of discernment, and was capable to some extent of exercising his faculties for self-preservation. His conduct must be judged by this degree of capacity.
The law is forcibly stated in the case of Westbrook vs. Railroad, from the Supreme Court of Mississippi, and reported in 6 Southern Reporter, p. 821. The court said: “ We are unable to subscribe to the doctrine that a minor 4 or 5 years of age shall, as a matter of law, be charged with contributory negligence, and barred from recovery in an action brought by him, or in his behalf, for an injury 'inflicted on him by another, because he did not exercise reasonable care to avoid the injury. A child of such age is generally incapable of [69]*69choosing between right ar>d wrong, between good and evil, and between care and rashness.
“ From him duties to others are not exacted, but from others to him duties are recognized and enforced.
“The rule which exempts a child of tender years from responsibility, while it may not operate justly in every possible case, on the whole promotes the end of justice, and we followed the authorities which held that a child of the age of appellant is prima facie exempt from responsibility, but testimony is admissible to show the contrary.” Mayor vs. McLain, 6 So. R. 774; Central Trust Co. vs. Wabash, St. L. & P. R. R. Co., 31 Fed. Reporter 246; 15 Wall. 401; 17 Wall. 657; Morgan vs. Brooklyn R. R. Co., 38 N. Y. 455; 38 N. Y. 445; 26 Conn. 591; 57 Penn. 187; 65 Penn. 269; 53 Ala. 70; 23 Wis. 186; 41 Ia. 71; 58 Ill. 226; Borksdoll vs. Railroad, 23 An. 180; Merkins vs. Blaise, 37 An. 92; Beach, Contributory Negligence, par. 39, p. 120; Wharton, Negligence, pars. 310, 322.
As a rule, the presumption is that a minor is not responsible for his contracts. There are exceptions, and the situation and necessities of the minor may be such that his contract may be binding upon him. These exceptions must be averred and proved. And for a like reason the child of tender years being prima facie incapable of taking care of himself, and thei’efore presumptively relieved from the consequences of his act, the exceptional capacity and maturity of the child must be pleaded by the defendant in his answer. There was no averment of this in the answer. But evidence was introduced on this point without objection. We will therefore consider it.
The evidence does not impress us with the belief that the boy Richard was endowed with exceptional capacity and maturity beyond his years.
He went to school, but was only in his first letters. He was a bright and sprightly boy. His capacity is best expressed in the words of his teacher, that he was a “ bright and obedient boy.” That he was not considered of exceptional capacity and maturity by his parents is proved by the fact that he was, when permitted to go on the streets, accompanied by a nurse. She accompanied him to school, and when unable to do so the teacher went for him and accompanied him.
[70]*70On the day of the unfortunate accident he eluded the vigilance of his parents and escaped to the street.
In the case of Lynch vs. Nurdin the child injured was under 7 years of age. He climbed on a cart left standing and unattended on the street by the defendant. Another child started the horse, and the child who was on the wheel was thrown from it and under it, • and his leg broken. The defendant was held liable, though the ■child, the plaintiff, was a trespasser. In this case the court said: “Ordinary care must mean that degree of care which may be reasonably expected from a person in plaintiff’s situation; and this would evidently be very small indeed in so young a child. But this case presents more than the want of care; we find in it the positive misconduct of the plaintiff as an active instrument toward the effect. ’ ’
The doctrine announced in this case has been affirmed in every court ■of last resort where it has been presented in this country, except in the courts of Massachusetts. Beach Contributory Neg., par. 45-47, p. 145; 2 Thompson on Neg., par. 39, p. 1192.
In the case of Railroad Company vs. Stout, 17 Wall. 660, where the child, Mary Stout, was 6 years of age, the law, in the case of Lynch vs. Nurdin, was affirmed.
Justice Hunt, the organ of the Supreme Court of the United States, said: “It is well settled that the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult, that to entitle him to recover damages for an injury resulting from the fault or negligence of another, he must himself have been free from fault. Such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of that case.” 2 Wharton on Neg., par. 309.
On this subject Mr. Wharton says in his work on Negligence, par. 314: * * * “ Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. The caution required is according to the maturity and capacity of the child, a matter as we have seen to be determined in each case by the circumstances of the case.”
In paragraph 315 he says: “But in cases where a child mischievously meddles with a machine or other dangerous agency, or with structures in public streets, another phase of facts presents itself, [71]*71and a result is reached, which, though differing superficially from the last stated case, accords with it in principle.
‘ ‘ In the case just mentioned the railroad engineer or the driver of a carriage is held liable if, by the exercise of due diligence, he could have avoided running over the child. Supposing, however, a well is left open, or machinery is exposed, and a child is thereby damaged? Again we say, notwithstanding the high authority to the contrary, that the negligence of the child’s parents has nothing to do with the issue. That issue is, was it negligence to leave the well or the machinery exposed? And this issue must be determined by the test whether such an exposure is consistent with the mode of action of a prudent and skilful business man. In applying this test we must necessarily view the community as a mass. To make a machine that would not be dangerous if tampered with by a meddlesome boy would be impossible; and therefore a good business man does not undertake to make a machine that would not be dangerous if tampered with by a meddlesome child. In other words, it is not a condition of the diligence of a good specialist that he should construct a machine with which a meddlesome child could not injure himself; but it is part of the condition of a good specialist that he should not negligently start in the streets a machine which destroys a child, no matter how meddlesome. And it is part of the diligence thus spoken of not to leave a dangerous machine (which it is not negligence to place in a private apartment) in a public street where it may be unconsciously handled by passengers or meddled with by idlers or children.” Kiffe vs. Railroad, 21 Minn. 207.
To the same effect as the above is the doctrine in the numerous ‘‘turn table cases,” which is as follows:
“A child injured while trespassing has no right of action, unless injured by the negligence of defendant when the injury might have been avoided by ordinary care on defendant’s part. But when a child of tender years commits a mere trespass and is injured by agencies that to an adult would be open and obvious warnings of danger, but not so to a child, he is not debarred from recovering if the things instrumental in his injury were left exposed and unguarded, and were of such a character as to be likely to attract children, excite their curiosity and lead to their injury while they were pursuing their childish instincts.
[72]*72“ Such dangerous and attractive instrumentalities become an invitation by implication.” Am. and Eng. Eney. of Law, Vol. 4, p. 53.
In the instant ease the boy Richard was in his parents’ yard, and was allured by the exposed machine to elude the vigilance of his parents in order to get on the roller. It was dangerous. It was of such a character as to excite his curiosity, and lead to the injury inflicted upon him while he was in the pursuit of his childish instinct. It was an invitation to him by implication. The machine was in a public place, on a public street, in close proximity to the yard of the plaintiffs. It was left exposed, unguarded and unsecured. The child Richard was of that tender age when childish instincts are probably at their fullest intensity.
The defendants are responsible in damages for the injury inflicted upon him.
Second Cause op Action.
In order that the plaintiffs be entitled to recover under this cause of action, under Act 71 of 1884, they must be free from negligence proximately contributing to their son’s injury. 2 Thompson on Negligence, par. 37, p. 1191.
The evidence does not establish the parents’ negligence. The child was forbidden the streets without an attendant. The gata was locked in order to keep him in the yard inclosure. He escaped from the yard over the fence into the street, where he got on the roller, not a half street distant, and opposite, or nearly opposite, the parents’ residence.
But had no precaution been observed to confine the child, it would not have been negligence for the parent to permit a child of his age to go on the sidewalk in front of the residence. Parents are not obliged to restrain their children within doors at their peril. 2 Thompson on Negligence, par. 34, p. 1185; Morgan vs. Brooklyn, 38 N. Y. 455; Burksdoll vs. Railroad, 23 An. 180; Mullins vs. Blaise, 37 An. 92.
It has been held that the mere fact that a child five years of age strayed more than two blocks from home, at play with other children, is not of itself evidence of contributory negligence on the part of its parents. 2 Thompson on Neg., Sec. 35, p. 1188, Note.
In this case the child was in the parents’ yard, and by the dangerous machine of the defendant was induced to leave it.
From the circumstance in the case, it is evident the plaintiffs were [73]*73not 'guilty of any negligence that' proximately contributed to the accident.
On the first cause of action the plaintiff’s are entitled to recover damages, for the suffering of the child. He was painfully injured, lacerated about the abdomen, and his body severely injured in other places. He lingered for five days, and during that time must necessarily have suffered intense agony and pain.
We fix the damages for this item at §1000.
For the second cause of action the plaintiffs would only be entitled to nominal damages. If we could compensate in money for the grief of the parents at the loss of their boy, the deprivation of his society, the endearment and affection which has been lost to them, there is nothing in the record to enable us to do so. Nor is there any evidence upon which we can base an estimate for the expenses incurred by the parents for the last sickness.
It is therefore ordered, adjudged and decreed that our former decree in this ease be avoided and reversed, and it is further ordered, adjudged and decreed that the judgment appealed from be annulled, avoided and reversed, and set aside, and it is now ordered, adjudged and decreed that there be judgment for the plaintiff in the sum of §1000, appellee to pay all costs.