any there was, in allowing it to go upon the public streets unattended by a person of mature years, constitutes no defense whatever to this action. In support of this conclusion and the former ruling of this court, it is sufficient to cite 1 Shearman and Redfield on Negligence, 4th ed., sec. 78; Beach on Contributory Negligence, sec. 43; Erie City P. R'y Co. v. Schuster, 113 Pa. St. 412; 57 Am. Rep. 471; Bellefontaine etc. R'y Co. v. Snyder, 18 Ohio St. 399; 98 Am. Dec. 175.

Even in the case of a suit by the parent all the circumstances are to be taken into account, and if the parent took as much care of the child as reasonably prudent persons of the same class and in the same situation in life ordinarily do, then the parent is not to be held guilty of such negligence as will defeat his action: 1 Shearman and Redfield on Negligence, 4th ed., sec. 72; O'Flaherty v. Union R'y Co., 45 Mo. 70; 100 Am. Dec. 343; Frick v. St. Louis etc. R'y Co., 75 Mo. 542. The negligence of the parent, to defeat his or her action, must be the proximate cause of the injury: Isabel v. Hannibal etc. R. R. Co., 60 Mo. 475. Unless these principles of law are adhered to, the poor of the land will be deprived of all benefit of the public schools in our cities which cannot be reached but by passing over and along the public highways. But no more need be said upon this subject; for this is not a suit by the parent or guardian.

Appellant contends that the court erred under the modified doctrine stated in Stillson v. Hannibal etc. R. R. Co., 67 Mo. 671. There the little girl, eight years old, was in the actual presence of the father. She attempted to pass through a small aperture between two cars standing on a track, and at a place which was not a public crossing, and was injured by the cars coming together. It was held that the negligence of the father should be imputed to the child in a suit by the child, inasmuch as the father was present and pointed out the place for her to go through, and she was attempting to follow out his directions when injured.

Of the cases there cited, that of Holly v. Boston G. L. Co., 8 Gray, 123, 69 Am. Dec. 233, was one where the injury seems to have been caused from the negligent act of the father. In Waite v. Railroad, 96 Eng. Com. L. 728, the child was in charge of its grandmother. The case of Ohio & Miss. R'y Co. v. Stratton, 78 Ill. 88, is a case where the boy, ten years old, was traveling with his father. The case concedes that the negligence of the parent or guardian having charge of a child of

tender years would not excuse the carrier from using all the means in its power to prevent the injury, but relieves the carrier from liability for the negligence of the parent when the parent's negligence is the proximate cause of the injury. "In that event," says the court "it is not the negligence of the defendant, but of the party having the control of the child; and if any liability attaches to either party, it must be to the latter."

case.

The girl in the present case was, to some extent, the protec tor of the little boy, but she was a child only, herself, and it is both unreasonable and inhuman to say that she filled the position of a parent or guardian. It might as well be said of twin children out of the sight of the mother, that each is the responsible guardian for the other. If the girl was to some extent negligent, that would not relieve the defendant from the exercise of due care. The Stillson case does not profess to disturb the former ruling of this court, and, it is believed, has never been so regarded. It is, at most, no more than an exception to a general rule, and must stand on its own peculiar circumstances, and is wholly inapplicable to the present The facts as in that case stated would indicate that the negligence of the father, and not of the defendant, was the proximate cause of the injury. The court, in a subsequent part of the opinion, after stating that the question of negligence was one for the jury, uses this language: "But there must be some evidence on which to base instructions to a jury. After a careful examination of the testimony in the case, aided by the maps in the record, we have been unable to conjecture in what respect it is claimed that there was negligence on the part of the defendant." There being no negligence on the part of the defendant, it was no more liable to an infant than an adult; so that, after all, the father's negligence was the proximate cause of the injury. And that case should be regarded as standing on this ground, and no other.

It follows, from what has been said, that the court did not err in its ruling upon these two instructions. In other instructions asked by the defendant, the jurors were told, in clear terms, that, before they could find for plaintiff, he must prove that he was injured in direct consequence of the negligence of the person in charge of defendant's car; that if the gripman was using ordinary care in looking out and attending to his business, but did not see the plaintiff in time to stop the car before running over him, then there was no negligence on his

part; and that ordinary care means that degree of care which an ordinarily prudent and careful person would exercise under like circumstances. The plaintiff's instructions are in accord with those given for defendant, and no substantial objection is made to them. The judgment is therefore affirmed.

INFANTS NEGLIGENCE. - Negligence of an infant as a bar to a recovery for personal injuries, see Westbrook v. Mobile & O. R. R. Co., 66 Miss. 560; 14 Am. St. Rep. 587, and extended note 590–596.

PARENT AND CHILD. - The negligence of a parent is no excuse for the misuse or abuse of the child by another: Westbrook v. Mobile & O. R. R. Co., 66 Miss. 560; 14 Am. St. Rep. 587.

GREATER CARE MUST BE EXERCISED BY RAILWAY COMPANIES in running through populous towns than under other circumstances: Note to Cooper v. Lake Shore etc. R'y Co., 11 Am. St. Rep. 491; Thompson v. New York eta R. R. Co., 110 N. Y. 636.

STREET-RAILROAD COMPANY HAS NO EXCLUSIVE RIGHT TO THE USE OF ITS TRACKS, but simply a paramount right; and while a person lawfully upon the tracks may not carelessly or willfully obstruct the cars, he is not abso lutely bound to keep off the tracks, and when injured by the carelessness of the company, without his own fault, he may recover damages therefor: Fleckenstein v. Dry Dock etc. R. R. Co., 105 N. Y. 655. The car-driver must control the car and exercise a reasonable degree of care and watchfulness, to prevent collisions and injury to persons crossing and traveling upon the track: Brooks v. Lincoln St. R'y Co., 22 Neb. 816.

DOWELL v. GUTHRIE.

[99 MISSOURI, 653.]

DISCHARGE OF FIRE-WORKS AT SUITABLE PLACES IS NOT UNLAWFUL, when not prohibited by statute or municipal regulations; but the circumstances may be such as to make it culpable negligence.

SHOOTING OFF FIRE-WORKS From Veranda OF COURT-HOUSE, in the center of a public square in a city, from troughs so arranged that the rockets would pass over the persons there assembled to witness the display, is not, in and of itself, an unlawful or wrongful act.

BURDEN OF PROOF OF NEGLIGENCE IS ON PLAINTIFF WHEN.

When a plain

tiff's case is founded on negligence, and not upon intentional injury, the burden of proof is upon him, throughout the trial, to prove it. WHETHER FIRE-WORKS WERE NEGLIGENTLY DISCHARGED IN PARTICULAR CASE IS QUESTION FOR JURY. — In an action to recover damages for the negligent discharge of fire-works, the question whether the defendants exercised the care in handling and discharging them that cautious and prudent persons would have used under like circumstances is to be determined by the jury from a consideration of a number of particular facts; and it is not proper, in such a case, for the court to select some of the leading facts, and to declare, as a matter of law, that such facts constitute negligence.

EVIDENCE WHICH DISCLOSES DISASTER IS OF ITSELF SUFFICIENT to entitle the plaintiff to go to the jury, where the defendant had charge of instru. ments which were highly dangerous. And it is therefore error for the court to instruct the jury that evidence which showed that fire-works were dangerous, and were discharged by the defendants, and that plaintiff was injured thereby, would not alone authorize them to draw the inference of want of due care.

JURY NOT REQUIRED TO FIND WHICH PARTICULAR ACT OF NEGLIGENCE CAUSED INJURY WHEN. - Where the evidence tends to show that a large quantity of combustible materials was placed on the floor of a narrow veranda, in the windows opening onto it, and on chairs near the windows, that the defendants smoked cigars during the entire performance, and that loose candles were found on the floor, on fire, it is error for the court to instruct the jury that, before finding for the plaintiff, who was injured by the discharge of one of the rockets on the veranda, they must determine which particular act of negligence occasioned the unforeseen discharge of the rocket which caused the injury.

PRESENCE OF PLAINTIFF AT DISPLAY OF FIRE-WORKS NO EVIDENCE OF CON. TRIBUTORY NEGLIGENCE WHEN. -The mere presence of the plaintiff at a display of fire-works, as a spectator, where it does not appear that he had anything to do with the discharge, does not make him a joint wrongdoer, or render him guilty of contributory negligence.

ACTION for personal injuries. The opinion states the case. George Robertson and H. S. Priest, for the appellant.

G. B. Macfarlane, for the respondents.

BLACK, J. This is a suit for damages, brought by the plaintiff against the four defendants, who had charge of and gave a pyrotechnic display in the city of Mexico on the night of the 11th of November, 1884. The plaintiff was hit in the face by a sky-rocket, which broke his cheek-bone and destroyed one eye. There was a verdict and judgment for defendants, to reverse which the plaintiff prosecutes this appeal.

The petition states that defendants negligently selected the veranda of the court-house for the purpose of giving the display; and that they so carelessly and negligently handled and shot off the fire-works, and permitted the same to be so negligently handled and shot off, that the plaintiff was struck by a sky-rocket in the charge of and under their control.

From the record, it appears various citizens of the city of Mexico concluded to celebrate the result of the Presidential election of 1884. The programme adopted consisted of speaking, marching of political clubs, and a display of fire-works. The plaintiff, in company with his club, went to Mexico in the afternoon for the purpose of participating, and at night marched in the procession. He did not contribute to the

purchase of the fire-works, and took no hand in the execution of that part of the programme; but he learned, from a companion, while on the way, that there was to be such a display; and there is evidence from which it may be inferred that he had such knowledge before he started.

The defendants constituted a committee to take charge of the fire-works, and they selected the east veranda of the courthouse as the place from which to make the display. The veranda is eight feet wide, fifty feet long, and is reached by passing through windows from the second story. The courthouse is on the public square in the center of the business portion of the city. The square is surrounded by streets, and there are buildings from one or two blocks to the east, beyond which there is an open country; and it was in this direction that the rockets were directed when fired from the troughs placed on the veranda. The rockets contained from an eighth to a half pound of powder, and would shoot with great speed, -almost that of a gun. It is estimated that eight or ten thousand persons were present on the occasion in question.

The defendants stored the fire-works in a room in the second story of the court-house, and took them out on the veranda from time to time, as needed. They would take out at one time a bundle of large rockets, from two to four or five boxes of darts, or small rockets, and a quantity of Roman candles. The candles were placed in chairs and in the windows, and the darts, or small rockets, were kept in the boxes, but were placed on the floor, next the wall of the building. The rockets, when fired from the troughs, threw back sparks of fire on the floor, covering a circle of two, three, or four feet. One witness says: "I will not say they did not go back as far as the wall of the court-house, nor to the fire-works that were on the floor." Towards the close of the exhibition, a bunch of candles was discovered on fire on the floor of the veranda, whirling around and throwing out balls of fire in every direction; these balls of fire came in contact with the rockets and darts, causing a conflagration, and the defendants retreated into the court-house. Several witnesses say they saw the sky-rocket which hit the plaintiff leave the veranda just as they saw the blaze begin at that place. The plaintiff was on the street, and about two hundred feet from the court-house, when hit. The defendants used lighted cigars to ignite the fire-works, and nothing else.

The evidence of the defendants tended to show that the