LORD BUCKMASTER(read by
My Lords, it would have been less easy to find the correct pathway through the difficulties which this case presents were it not that the road has already been travelled by learned judges who have left clear and definite signposts by which to guide our feet. I do not propose to leave the beaten track thus pointed out, and shall content myself with saying that, according to these directions, which are in my opinion correct, this appeal ought to fail. The case arises on a plea in law raised by the defenders, who asserted that the averments in the pursuer's condescendence were irrelevant and insufficient to support the conclusions of the summons, and that the action should be dismissed. The Lord Ordinary sustained this plea, but the Lords of the Second Division recalled his interlocutor and approved the issue proposed by the pursuer. From that judgment the present appeal is brought.
The case, as alleged in the pursuer's condescendence, is this: that the Botanic Gardens of Glasgow were a public park open to the public and in the custody of the defenders, the Glasgow Corporation. On a small piece of fenced ground in the gardens the appellants grew, among other botanical specimens, a shrub known as Atropa Belladonna, whose berries present a very alluring and tempting appearance to children. Notwithstanding the fence the piece of ground on which this shrub grew was open to the public. There was no isolation of the shrub nor warning that could be seen of its dangerous character. The spot where it grew was frequented by children, and according to the pursuer's allegations the circumstances were such that the defenders knew that it was probable, and indeed practically certain, that children would be tempted and deceived by the appearance of the shrub and would eat the berries. The knowledge that these berries were poisonous was also said to be possessed by the defenders. The pursuer's child, a little boy of seven, ate some of these berries and, in consequence, died. The question is whether the allegations before mentioned establish a cause of action by the father to obtain the money reparation for his affliction which the law of Scotland permits.
The important facts that must be borne in mind in forming a conclusion on this matter are, first, that the children were entitled to go to the spot where the shrub was grown; secondly, that there was no warning giving parents and those who had the custody of children any knowledge of the danger; thirdly, that the danger was known to the appellants.
In the case of Cooke v. Midland Great Western Ry. Co. of Ireland  A. C. 229), Lord Atkinson states the principle applicable to such a case in terms which are, in substance, repeated by Lord Sumner in Latham v. R. Johnson and Nephew, Ld.  1 K. B. 398, 416) Lord Sumner there says: "The presence in a frequented place of some object of attraction, tempting 'a child' to meddle where he ought to abstain, may well constitute a trap, and in the case of a child too young to be capable of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness of the peril of the object."
I can see no distinction between the conditions that are there postulated and those that obtain in the present case. How the questions of fact will be ultimately resolved is a matter for the jury before whom the case will be heard, but the condescendence alleges in plain terms all the essential conditions summarised by Lord Sumner. To the same effect also is the opinion of Lord Macnaghten, in the case of Cooke v. Midland Great Western Ry. Co. of Ireland. (supra). With regard to the cases of Hastie v. Edinburgh Magistrates 1907 S. C. 1102).and Stevenson v. Glasgow Corporation (1908 S. C. 1034.), both of which related to danger by water, the one of a pond and the other of a river, it is sufficient to say that the element of mistake and deception which is undoubtedly involved in the present case did not, and could not, arise. Here the children had, according to the allegations, placed within their reach something which they were tempted to eat, and to eat was the certain prelude to sickness and the probable precursor of death.
The appellants are bound to permit, or do in fact permit, their gardens to be used as a public park open to all members of the public, including even those of the immature age of seven years, though these latter should be unattended by persons capable of taking care of them. The question for decision upon this appeal is, as I understand it, this: whether, if the averments contained in the pursuer's condescendences were proved or admitted, they would prima facie establish the cause of action upon which the pursuer relies.
The question resembles that which would, under the English practice, arise upon a demurrer to a statement of claim. [His Lordship stated the pursuer's averments and continued:]
It was not disputed that the unfortunate child who lost his life was in these gardens on August 20, not merely as a licensee but as of right. It was not even suggested in argument that the child could by himself have, ascertained the true nature and character of this shrub. Your Lordships' attention was called by Mr. Sandeman to s. 37 of the Glasgow Public Parks Act, 1878 (41 and 42 Vict., c. lx.), which reads as follows:-
"The Lord Provost, Magistrates, and Council may from time to time make such byelaws as they shall think fit for the good government and regulation of the said public parks, gardens, and open spaces, and of the museums, galleries, and collections of natural history, science and art, and other buildings, and persons frequenting the same, and of the superintendents, curators, rangers, parkkeepers and other officers or servants appointed and employed by them. ...."
The forty-first section of this statute provides for the publication and posting in the park of these byelaws when made. It was admitted, however, that no byelaws of the kind mentioned were ever made. The appellants must be taken, I think, to have assumed the responsibility, whatever it was, of this omission.
The question then for decision is, if the relevant averments of fact contained in these several condescendences be taken as true, which for the purposes of this appeal I understand they must be, do they establish that a duty lay upon the defenders to take reasonably adequate precautions to protect on August 20, 1919, the pursuer's son from the danger by which the child lost his life?
In my opinion that question should be answered in the affirmative. If so, it is not contended that the duty was discharged. They did nothing to protect the child, and contend they were not bound to do anything. There is, in my view, no resemblance between this case and those cases where mischievous boys sustain injury by interfering with or misusing natural objects, such as trees in public parks up which they may be tempted to climb, or water, ornamental or other, into which they may accidentally fall or be tempted deliberately to enter. The appearance of such objects as these is well known and unmistakable. There is nothing deceptive or misleading about them. They cannot well be mistaken for things other than, or different from, what they really are. Whereas, if the averments in the condescendences be true, there was in this belladonna plant, with the deadly berries which it bore, something in the nature of a trap. The berries looked alluring and as harmless as grapes or cherries.
It is averred that the defenders and their agents knew this, and also knew which the deceased child did not - that the berries were, if eaten, highly poisonous. The defenders were, therefore, aware of the existence of a concealed or disguised danger to which the child might be exposed when he frequented their park, a danger of which he was entirely ignorant, and could not by himself reasonably discover, yet they did nothing to protect him from that danger or even inform him of its existence.
Many authorities are dealt with in the able judgments delivered by the learned judges in the Second Division of the Court of Session. They have also been cited in argument before your Lordships on the hearing of this appeal. I only think it necessary to refer to a few of them, but particularly to Cooke v. Midland Great Western Ry. Co. of Ireland  A. C. 229)and Latham v. R. Johnson and Nephew, Ld.  1 K. B. 398).
The decision of this House in the first of these two cases has, no doubt, been frequently criticised. I am familiar with the criticisms, and have noticed that in them not unfrequently either no weight or not full weight is given to the vital fact that there was evidence there to go to the jury from which they might reasonably conclude that the children mentioned in that case not only entered upon the lands of the company with its leave and license, but also played upon the dangerous machine, the turntable, they found there, with that very same leave and license. That is the feature of the case dwelt upon by Lord Macnaghten in the passage of his judgment where he says  A. C. 234): "The question for the consideration of the jury may, I think, be stated thus: Would not a private individual of common sense and ordinary intelligence, placed in the position in which the company were placed, and possessing the knowledge which must be attributed to them, have seen that there was a likelihood of some injury happening to children resorting to the place and playing with the turn-table, and would he not have thought it his plain duty either to put a stop to the practice altogether, or at least to take ordinary precautions to prevent such an accident as that which occurred?" I emphasize the words "playing with the turntable."
Lord Collins says  A. C. 241): "I think there was evidence that the turntable, fastened as it was only by a bolt so easily withdrawn, was a dangerous thing for young children to play with, and that the defendants, as reasonable men, ought to have known it; and that, situate as it was in such a conspicuous place, and frequented so largely by young people without remonstrance by the defendants, with easy access from the Bridge Road through a gap in the hedge and along a well-trodden path down the embankment, it could hardly fail to present an irresistible attraction to young persons. I think all these facts in combination were evidence from which a jury might well infer not merely a license, but an invitation, which fixed the defendants with a high responsibility towards those people to whom such an invitation would mainly appeal, namely, those who from their tender age would be deemed incapable of caution and therefore of contributory negligence."
And I, myself, after referring to the question which would arise in a case where the boys or children were trespassers, proceeded to say (Ibid. 239) : "In the view I take it is not necessary to determine that question in the present case, because I think there was evidence proper to be submitted to the jury that the children living in the neighbourhood of this triangular piece of ground, of which the plaintiff was one, not only entered upon it, but also played upon the turntable - a most important addition - with the leave and licence of the defendant company." Such were the real facts and the real question decided in Cooke v. Midland Great Western Ry. Co. of Ireland (supra).
Questions as to the liabilities of those who place on the public street, or other place which children of tender years have a right to frequent, and do in fact frequent, things - whether machinery or others, tempting and alluring in appearance to young children unable to take care of themselves, yet to the knowledge of those who placed them there most dangerous to children yielding to this temptation are different questions from those decided in Cooke v. Midland Great Western Ry. Co. of Ireland  A. C. 229).
The principle applicable to these latter questions is, I think, clearly stated by Lord Denman C.J., in his judgment in Lynch v. Nurdin 1 (Q. B. 29, 38). In that well-known case the defendant negligently left his horse and cart unattended in the public streets. The plaintiff - a child of seven - got into the cart in play. Another child incautiously led the horse on, and the first child, the plaintiff, was thereby thrown out and hurt. It was held that the defendant was liable in an action on the case, though the plaintiff was a trespasser, not upon the street, where he had a right to be, but upon the tempting thing the defendant had left unguarded in the street - the cart. In giving judgment Lord Denman C.J., said: "But the question remains, can the plaintiff then, consistently with the authorities, maintain his action, having been at least equally in fault. The answer is that, supposing that fact ascertained by the jury, but to this extent, that he merely indulged in the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blameable carelessness of his servant having tempted the child, he ought not to reproach the child with yielding to that temptation." I do not think Lord Denman would have had much difficulty in dealing with Lynch v. Nurdin if there had been evidence to go to the jury that the child had got into the cart with the leave and license of the owner of it.
It would appear to me that every word of this passage of Lord Denman's judgment applies to the present case. The child in the present case was of right in the gardens, as the child in that case was of right in the public street. The defendants planted and maintained in the garden, near the playground, which children, like the deceased, frequented, a shrub bearing, to their knowledge, berries in appearance alluring and tempting to children, apparently harmless, but deadly poisonous. The deceased child yielded to the temptation which was presented to him. The defenders, if the averments of the condescendences be true, knew of the nature, character, and strength of the temptation, and the dangerous, possibly deadly, result of yielding to it. The deceased child did not know, and could not reasonably have discovered, this latter fact. If one of the servants of the defenders had left unattended in this garden a cart and horse, and the deceased, yielding to temptation, had got into it, had fallen from it, and been killed, his father could have recovered according to the principle of the decision in Lynch v. Nurdin (1 Q. B. 29). I utterly fail to see on what ground he is not equally entitled to recover in the present case.
In Clark v. Chambers (1878) 3 Q. B. D. 327, 339) Cockburn C.J., after reviewing all the authorities, says: "It appears to us that a man who leaves in a public place, along which persons, and amongst them children, have to pass, a dangerous machine which may be fatal to any one who touches it, without any precaution against mischief, is not only guilty of negligence, but of negligence of a very reprehensible character, and not the less so because the imprudent and unauthorized act of another may be necessary to realize the mischief to which the unlawful act or negligence of the defendant has given occasion."
In Jewson v. Gatti (1886) 2 Times L. R. 381, 441) there was a cellar beside a highway in which painting was going on. A bar was placed round the opening. A passing child naturally looked down to see what was going on, the bar gave way and he fell into the cellar. Day J. non-suited the plaintiff. Lord Esher, in giving judgment, said: "This was a case of premises on the highway in a street where hundreds of persons and many children were passing up and down, and the area was left unprotected, without any due regard to the safety of the public, and that of itself might be sufficient to sustain a case for the plaintiff. But there was more than that. For there was painting going on in the cellar, and it must have been known that this would attract children; and then a bar was put up, ostensibly for the purpose of protection, against which children would naturally lean while looking down into the cellar where the painting was going on. That was almost an invitation, certainly an inducement, to the children to lean against the bar while looking down into the cellar. The child leant against it and it gave way, and she fell down."
The case of Harrold v. Watney  2 Q. B. 320) approved of and followed in principle Lynch v. Nurdin (1 Q. B. 29) on the question of the necessity of taking into account in such cases the propensities of children. The case of Latham v. R. Johnson and Nephew, Ld.  1 K. B. 398), was on its facts, in my view, quite different both from the case of Cooke v. Midland Great Western Ry. Co. of Ireland  A. C. 229), and from the present case. The land upon which the injured child had there entered, and where it met with its injury, was the site of some old houses and a wall, which had been pulled down, leaving an open piece of waste ground upon which were heaps of debris. The public were allowed by the defendants to traverse this piece of waste ground, and children were in the habit of playing upon the heaps of debris and other materials deposited there by the defendants. The waste ground did not adjoin the public highway, but was accessible by a path which led from the back of the house in which the injured child lived. On the morning of the day upon which the child was injured, a quantity of paving stones were deposited on this waste ground in an irregular heap. The child, unobserved by anybody, left her mother's house, and a short time afterwards was found sitting on one of the stones with her hand beneath another, by which it was crushed. There was no evidence to show how the accident occurred. The jury found (1.) that the children played upon the land with the knowledge and permission of the defendants; (2.) that there was no invitation to the child to go on the land unaccompanied; (3.) that they ought to have known that there was a likelihood of the children being injured by the heap of stone; (4.) that the defendants did not take reasonable care to prevent the children being injured.
If the jury had found that the heap of paving stones was in the nature of a dangerous machine, and that the child was sitting upon the heap and meddling or interfering with the stones with the leave and licence of the defendants, the case might to a slight extent resemble Cooke's Case.  A. C. 229). While if, on the other hand, the jury had found that the child was on the waste ground as of right, and that heaps of paving stones are so enticing and alluring to children that they were likely to be tempted to sit upon them and meddle with them, the case might have some slight resemblance to the present case; but as the Court of Appeal found (according to the headnote) that there was neither allurement, nor trap, nor invitation, nor dangerous object placed upon the land, I utterly fail to see how the facts of that case resemble those of the present, if the averments of the condescendences be taken as true, which for the purposes of this appeal they admittedly must be.
The liability of defendants in cases of this kind rests, I think, in the last resort upon their knowledge that by their action they may bring children of tender years, unable to take care of themselves, yet inquisitive and easily tempted, into contact, in a place in which they, the children, have a right to be, with things alluring or tempting to them, and possibly in appearance harmless, but which, unknown to them and well known to the defendants, are hurtful or dangerous if meddled with. I am quite unable to see any difference in principle between placing amongst children a dangerous but tempting machine, of whose parts and action they are ignorant, and growing in the vicinity of their playground a shrub whose fruit is harmless in appearance and alluring, but, in fact, most poisonous. I think, in the latter case, as in the former, the defendant would be bound, by notice or warning or some other adequate means, to protect the children from injury. In this case the averments are that the appellants did nothing of the kind. If that be true, they were, in my view, guilty of negligence, giving the pursuer a right of action.
For this reason I think the judgment appealed from was right and should be affirmed and this appeal dismissed with costs.
The Articles of the Condescendence are before the House. In the case for the appellants there is so clear and accurate a statement of the contents of these Articles that for convenience sake I insert it here:
"The place and circumstances of the occurrence are described in Articles 2, 3 and 4 of the respondent's Condescendence. In these Articles the respondent avers that on 20th August, 1919, his son, aged seven, with some other young children, proceeded to the Botanic Gardens, Glasgow, which are open to the public as a public park. The children went to the playground surrounding the bandstand there, a part of the gardens which, in the knowledge of the appellants, was and is much frequented by young children. At that date, and for some time prior thereto, the appellants had growing in a small plot immediately adjoining this playground specimen plants and shrubs of various kinds. Inter alia there were specimens of wheat, barley, oats, etc., and also a shrub Atropa Belladonna, bearing berries rather similar in appearance to small grapes, and presenting a very tempting and alluring appearance to children. This plot was enclosed by a wooden fence, and was open to the public, access being obtained by a gate in the fence, fastened by a wire loop. The plot was frequented by members of the public and by students. The gate could be easily opened by a young child. On the date in question, being attracted by the beautiful and tempting appearance of the berries, some of the children, including the respondent's son, entered the plot through the said gate, and picked and ate a few of the berries. Shortly afterwards they became ill, and the pursuer's son died the following morning.
"The respondent further avers in Condescendence 5 that the attractive character of the berries is accurately described in a well-known book on botany as follows:- 'The attractive character of the berries, looking as they do, to the uncritical eyes of young children, like cherries or big black-currants, has led to many serious accidents,' and that the poisonous character and the inviting and deceptive appearance of the berries were well known to the appellants and their servants."
I agree with your Lordships that these averments are relevant to be admitted to probation, and if true to infer liability on the appellants for the death of the pursuer's child.
My Lords, this is not a case of trespass. It is only indirectly that the cases of trespass throw light upon the present appeal. According to the averments of the pursuer, his son, aged seven, had a right to go where he was. He had, equally with any other citizen, a right to open the little gate which gave access to the shrubbery containing the poisonous plant. There is no trespass in the case. The child, having a right to be in these gardens, was, in my opinion, entitled, as were also his parents, to rely upon the gardens being left in a reasonably safe condition. Or, in the language of the Lord Justice-Clerk: "The playground for the children must be taken as being provided as a place reasonably suitable and safe for children, and I think the parents were entitled so to regard it."
To this would I venture to add that it matters not that the gardens were, or were called, Botanic Gardens. They admittedly were a public place of recreation to the citizens of Glasgow.
In grounds open to the public as of right, the duty resting upon the proprietors, or statutory guardians like a municipality, of making them reasonably safe does not include an obligation of protection against dangers which are themselves obvious. Dangers, however, which are not seen and obvious should be made the subject either of effectively restricted access or of such express and actual warning of prohibition as reaches the mind of the persons prohibited. The two Scotch cases of Hastie (1907 S. C. 1102) and Stevenson (1908 S. C. 1034) clearly illustrate the distinction. Grounds thrown open by a municipality to the public may contain objects of natural beauty, say precipitous cliffs or the banks of streams, the dangers of the resort to which are plain. In the language of Lord M'Laren in Stevenson's Case (Ibid. 1038), "I do not doubt that the Corporation, as proprietors, are bound to give reasonable protection to members of the public against unusual or unseen sources of danger, should such exist. But in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures." Lord Dundas very properly, if I may say so, accentuated this consideration in the present case.
When the danger is familiar and obvious, no special responsibility attaches to the municipality or owner in respect of an accident having occurred to children of tender years. The reason of that appears to me to be this, that the municipality or owner is entitled to take into account that reasonable parents will not permit their children to be sent into the midst of familiar and obvious dangers except under protection or guardianship. The parent or guardian of the child must act reasonably; the municipality or guardian of the park must act reasonably. This duty rests upon both and each; but each is entitled to assume it of the other.
Where the dangers are not familiar and obvious, and where in particular they are or ought to be known to the municipality or owner, special considerations arise. In the case of objects, whether artificial, and so to speak, dangerous in themselves, such as loaded guns or explosives, or natural objects, such as trees bearing poisonous fruits which are attractive in appearance, it cannot be considered a reasonably safe procedure for a municipality or owner to permit the exhibition of these things with their dangerous possibilities in a place of recreation and without any special and particular watch and warning. There can be no fault on the part of a parent in relying that such obligations of safety would be duly performed by the municipality or owner; and in allowing his child accordingly to pass into the grounds unattended the parent commits no negligent act. As for the child itself, while it may do things and incur dangers by inquisitively meddling with things it should not touch, it is plain that when the incurred danger - against which no protection or sufficient warning was directed to anybody - produces its unfortunate evil effect, the municipality or owner is answerable for this, and there is no defence of contributory negligence.
Lord Macnaghten made this observation in Cooke  A. C. 236): "It does not seem unreasonable to hold that, if" persons "allow their property to be open to all comers, infants as well as children of a maturer age, and place upon it a machine attractive to children and dangerous as a plaything, they may be responsible in damages to those who resort to it with their tacit permission, and who are unable, in consequence of their tender age, to take care of themselves."
The present is a case much stronger than one of tacit permission to resort, and the observation which I have ventured to quote seems to me to apply with singular cogency to the owners or guardians of public property and places of recreation.
I do not find myself able to draw a distinction in law between natural objects such as shrubs whose attractive fruitage may be injuriously or fatally poisonous, and artificial objects such as machines left in a public place unattended and liable to produce danger if tampered with. The act of tampering might be contributory negligence on the part of a grown-up person, but would not be so reckoned on the part of a child. I think the language of Cockburn C.J. in Clark v. Chambers (3 Q. B. D. 339, set out p. 56, ante) still remains of the highest authority. I also think that the same principle completely covers the present case, and that it does not, as I say, make any difference that the object which produced the danger was an artificial machine or a growing shrub. I think there was fault in having such a shrub where it was without definite warning of its danger and definite protection against the danger being incurred. To give such protection was part of the reasonable duty of the corporation, and citizens were entitled to rely upon it having been given.
I have stated the case as I view it without entering upon those points as to allurement or trap which more naturally occur in the leave and licence cases. But I must not be held to dissent in any way from the view that has been taken in regard to that aspect of the case. I might indeed venture to repeat Lord Sumner's language in Latham  1 K. B. 416) and respectfully adopt it: "The presence in a frequented place of some object of attraction, tempting him to meddle where he ought to abstain, may well constitute a trap, and in the case of a child too young to be capable of contributory negligence it may impose full liability on the owner or occupier, if he ought, as a reasonable man, to have anticipated the presence of the child and the attractiveness and peril of the object."
I do not desire, my Lords, to close my opinion without stating that I attach my express concurrence to the statement of my noble and learned friend Lord Atkinson in regard to the true scope and effect of Cooke v. Midland Great Western Ry. Co. of Ireland  A. C. 236).
How the right arose was not explained. Under their Act the defenders could have, but had not, made byelaws for the regulation of the park, so as to affect this case. Perhaps the section would not justify under the name of regulation total prohibition of the entrance of infants, even if public opinion would tolerate it. Perhaps a regulation that a child must be and remain in the charge of some responsible person, as a condition both precedent and subsequent to its admission, would not be worth much in itself and a jury might find that, being often evaded, it had been waived. On the other hand, the admission may have meant no more than that the child was not doing wrong in being in the Botanic Gardens, having an unconditional leave and licence from the defenders. Be this as it may, for present purposes I think the admission must go to its full extent. As, however, it is an admission only, nothing is decided as to the rights of any other case in accepting it, and nothing prevents the nature of the admitted right from being further examined, if necessary, at a later stage of this case. The position, therefore, I take to be, that the child had a right to be in the part of the park where the defenders had a right to grow their bush, and the law has to place the exercise of each of these two rights in a just relation to that of the other. The child had no right to pluck the berries, but the corporation had no right to tempt the child to its death or to expose it to temptation regardless of consequences. The question is therefore one of the relative duties of care between the corporation and the child, when each was exercising a right and neither right was, as such, subordinated to the other. Nothing, I think, turns on the fact that the corporation's right arose out of ownership of the soil and the child's did not. It would have made no difference in Lynch v. Nurdin (1 Q. B. 29) if the cart had belonged to the road authority and the careless carter had been its servant, or if the soil of the road had belonged to the infant and the cart had been there in the exercise of a public right of way.
Further elaboration of the case at this stage is needless and perhaps undesirable. I think I can probably be of more service if I indicate what, in my opinion, your Lordships' decision does not involve than what it does. We are not dealing with trespassers or with licensees or with invitees, as such. Nothing is laid down as to the duty of private landowners towards such persons; nothing as to any general duty to erect fences, or to alter the natural features and state of private lands; nothing as to safeguarding at all hazards any children found thereon; nothing as to seen dangers or as to places in which the presence of children is not to be expected. Such cases must be discussed in the light of other decisions appropriate to them.
At the bar some argument arose as to the pursuer's own responsibility in respect that he either had not effectually taught the child not to take what did not belong to it, or that he had not caused it to be in charge of some one able to take care of it, while in the defenders' park. In some previous cases these points have been spoken of as going to the measure of care which the defenders owed to the child, so that the child would be entitled to no greater care than an adult. Stevenson v. Corporation of Glasgow, per Lord Johnston (1908 S. C. 1036). The same learned judge in Reilly v. Greenfield Coal and Brick Co. (1909 S. C. 1328, 1334) speaks of a parent's negligence being the same, whether, as tutor-in-law for the injured infant, he sues to recover for it damages for injury or in his own right seeks to recover solatium for himself, and he adds that such negligence is "attributable vicariously to the child." Lord Ardmillan in Grant v. Caledonian Ry. (1870) 9 M. 258, 264) regards the age of the infant as unimportant, for either the child was able to take care of itself or, if not, it should have been taken care of by its parents. The parent's obligation has often been stated as being a material matter, e.g., by Alderson B. in Lygo v. Newbold (1854) 9 Ex. 302) and by Lords Kinnear and Salvesen in Hastie v. Edinburgh Magistrates (1907 S. C. 1102); see also Davidson v. Monkland Rys. Co. (1855) 17 D. 1038).It is evident that these propositions, though much alike, are not really identical. The child's own contributory negligence, in the true sense of the term, is for the defender to prove; so, it would seem, is the parent's. In the former case it must be direct, or not remote; in the latter it is not easy to see, apart from cases where the parent's negligence is continuing, so as to constitute a joint cause of the injury concurrent with the negligence of the defender, why the neglect to have the child better taught or to keep it in charge of a competent person is not too remote to be a contributory cause of the accident. On the other hand, if the child's inability to take care of itself is part of those circumstances which define the defender's obligation of care, it is the pursuer who should prove it. Again, if the true proposition is that a parent can only sue for solatium in his own right where he can show that he has satisfied the condition precedent of having taken all reasonable precautions to protect the child from the consequences and risks of its own childishness, it is for him to prove the fulfilment of this condition; but what if the person provided, though proper, is careless, and what if the accident would have happened all the same, whether such a person was provided or not? If the parent, who presumably knows all about his child, did not anticipate risk enough to require that the child should not go alone, can it be negligence in the defenders, who do not, to take no precautions for their part in view of the possible tender age of the visiting child? If so, the matter is one to be raised by the defenders. Again, the pursuer no doubt owes a duty to his child, but what is the duty to be careful of the child which he owes to the defenders, as distinct from mere conduct on his part qualifying him to recover his own solatium? The former duty the defenders would have to prove; the latter, as part of his own qualification, must be proved by the pursuer. I confess that, in view of such opinions as I have cited, the law on this point, in actions brought by the parent for the loss of his child, does not seem to me to be settled or even to be simple. If a parent sues because he is bereaved, what if it appears that, if he had done his parental duty, no harm would have come to the child, and he would not have been bereaved at all? Is the matter merely one of cause and effect? If a parent's neglect of that duty is not a cause but at most a sine qua non of the child's death, who then in law has caused the child's death? I offer no opinion on any unsettled question. All that I desire to make quite clear is, that, although these matters were discussed in the Court below, and to some extent also at your Lordships' bar, none of them have arisen for decision at this stage of the case, but they remain open, if it becomes necessary to raise them later on.
The position is the same as to the age of the child. The question whether it was or was not capable of contributory negligence on its own part, just as the question whether the parents are or are not guilty of contributory negligence, in fact is untouched. It was contended before the Court of Session that a child has in such matters as this a separate and distinct right in regard to the care that is due to it; "that there is a recognised difference in law between the duty of public authorities to a child and to an adult" (58 S. L. R. 160). This is not really a correct statement. Where a question as to the care to be used arises between persons using as of right the place, where they respectively act, infancy as such is no more a status conferring right, or a root of title imposing obligations on others to respect it, than infirmity or imbecility; but a measure of care appropriate to the inability or disability of those who are immature or feeble in mind or body is due from others, who know of or ought to anticipate the presence of such persons within the scope and hazard of their own operations.
I think the appeal fails.