NEGLIGENT DRIVING. 291 



amounts to intentional trespass (i). If a child of very 

 tender years is guilty of what in an adult would be mere 

 negligence and nothing more, as, for instance, where it is 

 exercising a right of passage on a public way but in a care- 

 less manner, and in so doing is injured by an act of which 

 the negligence of another is the proximate cause, it seems 

 clear that the conduct of the child can afford no defence to 

 an action to recover damages on its behalf (A). But where 

 such a child is guilty, not of mere carelessness in the doing 

 of a lawful act, but of a wholly unlawful act such as a 

 wilful and intentional trespass (^), it is doubtful whether 

 such conduct will not afford a defence to an action for 

 negHgence. If Lynch v. Nurclin (m) is good law, it is clear 

 that it would not do so, but if, on the other hand, the ruling 

 in more recent cases is to be accepted, it would seem to be 

 equally clear that it would («). 



As a general rule of law, every one in the conduct of a wrongdoer 

 that which may be harmful to others if misconducted, is °ot ivithout 

 bound to use due care and skill, and the wrongdoer is not ^e^P^ileof the 

 without the pale of the law for this purpose (o). 



Therefore, where the defendant negligently drove his Drivini' 

 horses and waggon against and killed an ass, which had against an ass 

 been left in the highway fettered in the fore feet, and was l"** ^'***'=i''i^ 

 thus unable to get out of the way of the defendant's 

 waggon, which was going at a smartish pace along the 

 road, Mr. Justice Erskine told the jury, that though the 

 act of the plaintiff in leaving the donkey on the highway 

 so fettered as to prevent his getting out of the way of 

 carriages travelling along it might be illegal, still if the 

 proximate cause of the injury was attributable to the want 

 of proper conduct on the part of the driver of the waggon, 

 the action was maintainable against the defendant ; and his 



(«) Clerk & Lindsell on Torts, p. could not maintain an action. See 



386. also Manr/an v. Atterton, L. E., 1 



(k) Gardner v. Grace, 1 F. & F. Ex.239; 35 L. J., Ex. 161, where the 



3.59 — Channel, B., at N. P. ; Zaijy. same conclusion was arrived at in the 



Midland Rail. Co., 34 L. T., K. S. case of a child of four who had in- 



30. jured its hand in meddling with a 



{V) See Clerk & Lindsell on Torts, machine exposed by the defendant, 



p. 387. unfenced, in a public place. But see 



(m) See note {g), supra. as to this case the observations of 



(«) See Hughes v. Macjie, 33 L. J., Cockburn, C. J., in Clark v. Chambers, 

 Ex. 177, where it was held that a 3 Q. B. D. 338, 339. See also Pol- 

 child of seven who had wrongfully lock on Torts, 3rd ed., pp. 419, 420, 

 climbed upon the defendant's cellar- 533, n. 



flap which the latter had negligently (o) See per Lord Denman, C.J., 



reared against the wall of his house, Mayor of Colchester v. Brooke, 7 Q. 



and had been injured in jumping off, B. 377. 



u 2 



