left in a very unsatisfactory state. The English rule corresponds to that of the New York courts.1 But the fact that a party who is not sui juris is found in a place of danger, does not establish a case of negligence against his proper custodian. Very young children are properly allowed some liberties: a child of five may be allowed on a city sidewalk, and a child of ten to run on errands without any one feeling shocked by the risks to which he is exposed, though confessedly these would be greater than in the case of an adult. Suffering such liberties is not an exercise of the highest care, but it is, nevertheless, not inconsistent with ordinary care. It is, therefore, not negligence. Moreover a child in a dangerous position may have reached it by escape from his proper custodian, who was at the time in the exercise of proper care. In such a case no question of concurring negligence arises, and whether suit is brought by the parent for the injury to his rights as such, or by the child, there is nothing in the exposure which, under the doctrine of any of the courts, should preclude recovery. 1 &c., R. R. Co., 26 Conn, 591; Norfolk waukee, &c., R. R. Co., 21 Minn. 207; Wood v. School District, 44 Iowa, 27. Waite v. Nor. East. R. Co., El. Bl. & El. 719, 728; Singleton v. Eastern Counties R. Co., 7 C. B. (N. 8.) 287; Mangano. Atterton, L. R. 1 Exch. 239. See Gardner v. Grace, 1 Fost. & F. 359. It may be urged, with some plausibility, that this doctrine is more likely to guard the interests of children and imbeciles than is the opposite. If a heartless parent or guardian may suffer a child to take his first lessons in walking in the crowded streets of a city, and then, when he is injured or killed, as in all probability he would be, may recover for such injury or killing, on the ground that the child himself is too young to be chargeable with negligence, there will not, perhaps, be wanting depraved custodians of children, unrestrained by any considerations of humanity, willing enough to count upon probable gains from such reckless conduct. 2 Railroad Company . Stout, 17 But the extreme youth of a child is always an import[*683] ant *circumstance in its bearing on the question of negligence in the party by whose act or neglect he is injured.' One has no right to demand of a child, or of any other person known to be wanting in ordinary judgment or discretion, a prudence beyond his years or capacity, and therefore in his own conduct, where it may possibly result in injury, a degree of care is required commensurate to the apparent immaturity or imbecility that exposes the other to peril. Wall. 657; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; Karr v. Parks, 40 Cal. 188; Mulligan v. Curtis, 100 Mass. 542; Pittsburgh, &c., R. R. Co. v. Bumstead, 48 Ill. 221; Koons v. St. Louis, &c., R. R. Co., 65 Mo. 592; Rauch v. Lloyd, 31 Penn. St. 358; Bronson v. Southbury, 37 Conn. 199; Baltimore, &c., R. R. Co. v. State, 30 Md. 47; Farris v. Cass Ave., &c., Co., 80 Mo. 325; Gavin v. Chicago, 97 Ill. 66. See Brown v. European, &c., R. R. Co., 58 Me. 384. It is not negligence per se in a parent to allow a child to play in the street. Kunz v. Troy, 104 N. Y. 344. In the following cases it has been held a question of fact whether the parent was negli gent in allowing the child to remain unattended or to go out in charge of an older child. Reilly . Hannibal, &c., Co., 7 S. W. Rep. 407 (Mo.); Gibbons v. Williams, 135 Mass. 333; Collins v. South Boston, &c., Co., 142 Mass. 301; Payne v. Humeston, &c., Co., 70 Ia. 584; Dahl v. Milwaukee, &c., Co., 65 Wis. 371; Bliss v. South Hadley, 13 N. E. Rep. 352 (Mass.); Stafford v. Rubens, 115 Ill. 196. See Gulline v. Lowell, 144 Mass. 491; Johnson v. Chicago, &c., Ry. Co., 56 Wis. 274. If the conduct of the infant, relied upon as showing negligence, would not have been negligence in an adult, of course the questions discussed in the text become unimportant. McGary v. Loomis, 63 N. Y. Thus, a person driving rapidly 104; S. C. 20 Am. Rep. 510; Ihl ®. Ferry Co., 47 N. Y. 317; S. C. 7 Am. Rep. 450; O'Brien . McGlinchy, 68 Me. 552. 'Where infants are the actors, that might probably be considered an unavoidable accident which would not be so considered where the actors are adults. Bullock v. Babcock, 3 Wend. 391, 394; Cosgrove v. Ogden, 49 N. Y. 255; S. C. 10 Am. Rep. 361. As to duty to child trespassing on cars, see Chicago, &c., Ry Co. v. Smith, 46 Mich. 504; Cauley v. Pittsburgh, &c., Co., 95 Penn. St. 398; Ecliff . Wa bash, &c., Co., 31 N. W. Rep. 180 (Mich.); Bishop v. Union R. R. Co., 14 R. I. 314; Emerson v. Peteler, 35 Minn. 481; trespassing on railway track, see cases note 3, p. 817, ante. 2 See, as to persons of apparently unsound mind, or deprived of one or more of their senses, Chicago, &c., R. R. Co. v. Gregory, 58 Ill. 226; Chicago, &c., R. R. Co. v. McKean, 40 Ill. 218; Ill. Cent. R. R. Co. s. Buckner, 28 Ill. 299. In crossing a track the law requires the same degree of care in a woman as in a man. Hassenyer v. Mich. Centr. R. R. Co., 48 Mich. 205. Contributory negli gence is not possible in a child which has not the ability to foresee danger. Bay Shore, &c., R. R. Co. v. Harris, 67 Ala. 6; Phila., &c., R. R. Co. t. Layer, 112 Penn. St. 414. is demanded of a child Less care than of an along a highway where he sees boys engaged in sports, is not at liberty to assume that they will exercise the same discretion in keeping out of his way that would be exercised by others; and ordinary care demands of him that he shall take notice of their immaturity and govern his action accordingly.' And if a carrier of persons receives an infant passenger without any guardian, he should give him the care and attention required by his age, and cannot object, when an injury happens to him, that it was negligence in those responsible for his care, in permitting him thus to move about by himself.' Concurring Negligence Subsequent to Injury. It is no answer to an action that the injured party, subsequent to the injury, was guilty of negligence which aggravated it. The negligence that will constitute a defense must have concurred in producing the injury.' *Negligence of Third Parties. In general the negligence [*684] adult. Barry v. New York, &c., R. R. Co., 92 N. Y. 289; Cooper v. Lake Shore, &c., Ry Co., 33 N. W. Rep. 306 (Mich.). But if sui juris some care on his part is demanded. Wendell v. New York, &c., R. R., 91 N. Y. 420. See Ecliff v. Wabash, &c., Co., 31 N. W. Rep. 180 (Mich.); Baltimore, &c., R. R. Co. v. Schwindling, 101 Penn. St. 258; Moore v. Penn. R. R. Co., 99 Penn. St. 301. If in excavating, an unguarded precipice likely to attract children is left, a city may be liable. Mackey v. Vicksburg, 64 Miss. 777. So if an explosive is left within reach of children. Powers v. Harlow, 53 Mich. 507. So if a railroad turntable is left unsecured and a child playing about it is injured. Railroad Co. v. Stout, 17 Wall. 657; Evansich o. Gulf, &c., Ry Co., 57 Tex. 126. Nagel v. Miss. Pac. Ry Co., 75 Mo. 653. See Bridger v. Asheville, &c., Co., 25 S. C. 24. Contra, Frost v. Eastern R. R. Co., 9 Atl. Rep. 790 (N. H.). Not liable if the child displaces the fasten ing. Kolsti v. Minn. &c., Co., 32 Minn. 133. 1 Railroad Co. v. Gladmon, 15 Wall. 401; Lynch v. Smith, 104 Mass. 52; S. C. 6 Am. Rep. 188; Walters v. Chicago, &c., R. R. Co., 41 Iowa, 71; East Tenn. R. R. Co. v. St. John, 5 Sneed, 524; Hund v. Geier, 72 Ill. 394; Kerr v. Forgue, 54 Ill. 482; S. C. 5 Am. Rep. 146. • East Saginaw, &c.. Co. v. Bohn, 27 Mich. 503; Maher v. Central Park, &c., Co, 67 N. Y. 52; Baltimore, &c., R. Co., v. McDonnell, 43 Md. 534. Loeser v. Humphrey, 41 Ohio St. 378; Page . Sumpter, 53 Wis. 652; Wilmot v. Howard, 39 Vt. 447; Hathorn. Richmond, 48 Vt. 557. These last were actions against physicians, where the defense was that the cases were taken out of their hands and committed to others who were negli gent. It is nevertheless the duty of the party injured to take care that the damage shall be as light as possible. Plummer v. Penobscot Ass'n, 67 Me. 363. of third parties concurring with that of the defendant to produce an injury is no defense: it could at most only render the third party liable to be sued also as a joint wrong-doer.' But in some cases where the person injured was for the time being with and under the direction of the third party, whose negligence concur red in producing the injury, this negligence has been held to be a bar to any recovery. In the leading English case the plaintiff, in alighting from a public omnibus, was knocked down and injured by an omnibus belonging to the defendant. The case was put to the jury under instructions that if it was found that the driver of each omnibus was guilty of negligence contributing to the injury, the plaintiff was not entitled to recover; he being so far identified with the driver of the vehicle he was riding in that he must be considered a party to the negligence. The like rule has been frequently laid down in this country. But in several States its soundness is denied. In New Jersey it is held 'North Penn. R. Co. v. Mahoney, 57 Penn. St. 187; Cleveland, &c., R. R. Co. v. Terry, 8 Ohio, (N. 8.) 570; see Pittsburgh, &c., R. Co. v. Spencer, 98 Ind. 186; Wabash, &c., Ry Co. v. Shacklet, 105 Ill. 364. 2 Thorogood v. Bryan, 8 C. B. 115. See, also, Bridge v. Grand Junction R. Co., 3 M. & W. 244; Child v. Hearn, L. R. 9 Exch. 176; Armstrong v. Lancashire, &c., R. Co., L. R. 10 Exch. 47. 3 Lake Shore, &c., R. R. Co. v. Miller, 25 Mich. 274; Houfe v. Fulton, 29 Wis. 296; Prideaux v. Mineral Point, 43 Wis. 513; Otis v. Janesville, 47 Wis. 422; Lockhart v Litchtenthaler, 46 Penn. St. 151; Forks Township v. King, 84 Penn. St. 230: Phila., &c., R. R. Co. v. Boyer, 97 Penn. St. 91; Crescent v. Anderson, 114 Penn. St. 643; Hershey v. Road Com'rs., 9 Atl. Rep. 454 (Penn.); Payne v. Chicago, &c., R. R. Co., 39 Iowa, 523; Stafford v. Oskaloosa, 57 Ia. 748; Slater v. Burlington, &c., Co., 32 N. W. Rep. 264 (Ia.); Joliet v. Seward, 86 Ill. 402; Huntoon v. Trumbull, 2 McCrary 814. Chapman v. New Haven, &c., R. R. Co., 19 N. Y. 341; Colegrove . New York, &c., R. R. Co., 6 Duer, 382 and 20 N. Y. 492; Robinson ". New York Cent. R. R. Co., 69 N. Y. 11; S. C. 23 Am. Rep. 1; Masterson . New York, &c., Co., 84 N. Y. 247; McCallum v. Long Isl. R. R. Co., 38 Hun, 569. And, see Webster v. Hudson Riv. R R. Co., 38 N. Y. 260; Arctic &c., Co. v. Austin, 69 N. Y. 471. Otherwise if driving with another engaged in a common employment. Donnelly . Brooklyn, &c., Co., 15 N.E. Rep. 733 (N.Y.). So if driver, known to be unfit, is driv ing recklessly and plaintiff is riding at his own request. Smith . New York, &c., Co., 38 Hun, 33. In Maryland, Minnesota, Indiana and New Hampshire, the person riding at the invitation of the driver is not affected by his negligence. Phila. &c., Co. v. Hogeland, 65 Md. 149; Follman v. Mankato, 35 Minn. 522; Albion v. Hetrick, 90 Ind. 545; Noyes v. Boscawen, 10 Atl. Rep. 690 (N. H.). So Carlisle v. Brisbane, 113 Penn. St. 544; Mann v. Weiand, 81* Penn. St. that the negligence of the driver of a street car in which the plaintiff was riding is not to be imputed to the plaintiff as a bar to an action for the injurious negligence of a third party,' and in the United States Supreme Court, and some of the other States, a like ruling has been made.' The English Court of Appeal has recently overruled Thorogood v. Bryan in so far as it applies to public conveyances. 3 Contracts against Liability for Negligence. The right of common carriers to agree for a limitation of their common law liability has been supported in many cases, while their right to force contracts upon those who come to do business with them has been denied. The contracts are supported on the ground that the parties respectively have found it for their interest to make them, and no reason exists to preclude it. But there may be *contracts which, perhaps, public policy would [*685] forbid. This has been held to be the case with the contracts of common carriers which assume to exempt them, not only from liability for the inevitable risks attendant upon their business, but for risks from the negligence of themselves and their servants. In numerous cases it has been held that they could not by any stipulation relieve themselves from responsibility for injuries resulting from a want of ordinary care. There 243. But if one riding with an intoxicated driver makes no remonstrance against his attempt to run a toll-gate, he is not free from contributory neg ligence. Brannen v. Kokomo, &c., N. E. Rep. 202 (Ind.). In Ohio a girl riding with her father is not affected by his carelessness. Street Ry Co. v. Eadie, 43 Ohio St. 91. 'Bennett v. New Jersey R. R. Co., 36 N. J. 225. See New York, &c., Co. v. Steinbrenner, 47 N. J. L. 161; But one is chargeable with the negligence of his servant; Penn. R. R. Co. . Righter, 42 N. J. L. 180. 2 Little v. Hackett, 116 U. S. 366. Here a person hired a public hack and told the driver where to go. See Holzab v. New Orleans, &c., Co., 38 La. Ann. 185; Transfer Co. v. Kelly, 36 Ohio St. 86, cases of a street car; Cuddy v. Horn, 46 Mich. 596, case of a vessel. The Bernina L. R. 12 Prob. Div. 58, case of fault in the engineer of a steamer whereby a passenger was injured in a collision. Camden, &c., R. R. Co. v. Baldauf, 16 Penn. St. 67; Goldey v. Pennsylvania R. R. Co., 30 Penn. St. 242; Pennsylvania R. R. Co. v. Henderson, 51 Penn. St. 315; Farnham v. Camden, &c., R. R. Co., 55 Penn. St. 53; Colton v. Cleveland, &c., R. R. Co., 67 Penn. St. 211; Bickham v. Smith, 62 Penn. 45; Lackawanna, &c., R. R. Co. v. Chenewith, 52 Penn. St. 382; Penn. R. R. Co. v. Riordon, 13 Atl. Rep. 324 (Penn.); Orndorff v. Adams Express Co., 3 Bush, 194; Smith v. Nor. |