202 PROOF OF CONTRIBUTORY NEGLIGENCE. 



in Glasgow, the Court held it not to be a good defence that 

 the father had contributed to the accident by allowing them 

 to be there unprotected. (a) If, however, a child rushes 

 suddenly in front of an advancing vehicle, and it is impos- 

 sible for the driver to pull up, the driver will be free.(6) The 

 question as to what age a child can be guilty of contributory 

 negligence depends on the negligence alleged. Thus, where 

 a child was killed on a private Ime of railway by a passing 

 engine. Lord President Inglis observed : — " To allow a child 

 of two and a-half years of age to wander about in so danger- 

 ous a place, without anyone to take charge of it, showed 

 great carelessness on the part of the parents," and the father 

 was not found entitled to recover for its death.(c) Again, 

 Avhere a child, four years old, was injured while meddling 

 with a dangerous machine, negligently left unprotected, 

 Lord Young said : — " There can be no contributory negli- 

 gence by a child of four years. "(J) A child is only guilty of 

 contributory negligence when it neglects the care that is 

 usually to be expected from children of its age.((^) 



163. Proof of Contributory Negligence. — Proof of con- 

 tributory negligence is subject to the same rules as proof of 

 negligence. (/ ) What a defender has to prove is that the 

 pursuer has been negligent. If he succeeds, the pursuer 

 will not recover ; but if it is clear that the defender had been 



(rt) iMartin v. Wards, 1887, 14 R. 814. 



(b) Frasers v. Edinburgh Street Tramimys Co., 1882, 10 R. 264. In this case a 

 new trial was granted, on the ground of the jury having ignored evidence of con- 

 tributory negligence of the boy, who was six years old, rushing in front of a tram- 

 car. It resulted in a verdict for the defenders, on the ground of no fault, the 

 speed not being excessive. 



(c) Morran v. Waddcll, 1883, 11 R. 44 ; Grant v. Caledonian Ry. Co., 1870, 9 

 M. 258 ; see also Davidson v. Monklands Ily. Co., 1855, 17 D. 1038 ; Greer v. 

 Stirlingshire Road Trustees, 1882, 9 R. 1069, where defenders were found liable for 

 the death of an infant of twenty-two months old, who, accompanied by a child 

 of three and a-half years, crept through an insufhcient fence, and was di'owned. 



((/) M'Grcgor v. Ross, 1883, 10 R. 725, 731 ; see also Campbell v. Ord, 1873, 

 1 R. 149. 



(c) Lynch v. Nurdin, 1841, 1 Q.B. 29. 

 (/) See § 159. 



