Mowrey v. Cent. C. Ry. - 51 N.Y. 666 (1873)

Rule:

The rule, requiring the absence of contributory negligence, was not established out of any tenderness for the negligent infliction of an injury, but to discourage carelessness; and that, in determining whether the fault exists, the condition of the person whose acts are in question should be considered; and that the old, the lame, the infirm or the young are entitled to have their condition and ability, mental and physical, considered in diminution of the degree of care exacted of them. 

Facts:

Plaintiff, thirteen years of age, sustained injuries while attempting to get on to one of defendant’s cars. Plaintiff, through his guardian, brought the present action to recover damages. The district court nonsuited the plaintiff upon the ground of contributory negligence on his part. Plaintiff challenged the decision.

Issue:

Did the district court err in dismissing the plaintiff’s action on the ground of plaintiff’s contributory negligence?

Answer:

Yes.

Conclusion:

The appellate court held that it was an error to dismiss the action since the question of contributory negligence was one of fact for the jury. The Court noted that in determining whether contributory negligence existed, the condition of the person whose acts were in question should be considered; and that the old, the lame, the infirm or the young were entitled to have their condition and ability, mental and physical, considered in diminution of the degree of care exacted of them.