CONTRIBUTORY NEGLIGENCE OF PUPIL CHILDREN. 201 



result by the exercise of ordinary care and diligence, have 

 avoided the mischief which haj^pened, the plaintiffs negli- 

 gence "will not excuse him " — i.e., the defendant. Tlius, 

 where a tramway driver, going down an inchne whistled so 

 that a cab, which was standing in the way, might get out of 

 the way, but nevertheless ran into it, and injured it, it Avas 

 held that there was no contributory negligence on the part 

 of the cabman, who did not drive off immediately, but was 

 waiting to pick up a passenger. (a) Again, Avhere the negli- 

 gence of the injurer consisted in his servant's leaving a horse 

 and cart unattended in the street, and it would not neces- 

 sarily have been followed by damage had there not been 

 great negligence on the part of the child injured by amusing 

 itself with the Avheel, Lord Denman observed : — " The most 

 blameable carelessness of his servant having tempted the 

 child, he ought not to reproach the child with yielding to 

 that temptation. He has been the real and only cause of 

 the mischief ; he has been deficient in ordinary care ; the 

 child, acting Avithout prudence or thought, has, hoAvever, 

 shoAvn these qualities in as great a degree as he could be 

 expected to possess them. His misconduct bears no propor- 

 tion to that of the defendant Avho produced it." (b) Where 

 negligence of the injured party subsequent to the accident 

 aggravates the amount of damage, it is pleadable in mitiga- 

 tion of damage, (c) (As to the bearing of the Emplo3-ers 

 Liability Act on this plea, see § 1G4.) 



162. Contributory Negligence of Pupil Children. — Young 

 children have as much right to be on the public street and 

 highways as adults ; and their disposition to get in front of 

 vehicles is one of the risks drivers must specially guard 

 against. (f?) Thus, where two children, one three, and the 

 other five, years of age, were driven over in a crowded street 



(a) M'Dcrmaid v. Edinburgh Street Tramicays Cumpany, 1884, 12 R. 15. 



{b) Lynch V. Nurdin, 1841, 1 Q.E. 29, 37. 



(c) Moffat V. Park; 1887, 5 R. 13. 



(rf) Auld V. Ariieij, 1881, 8 R. 495 ; see also § 142. 



