#### Robert E. Burke, Plaintiff in Error, v. Wallace M. Waterman, Defendant in Error.

Gen. No. 19,028.

(Not to be reported in full.)

Abstract of the Decision.

1. Negligence, § 95 * —“due care” when applied to a child defined. The term “due care,” when applied to a child, means that degree of care which a child of his age, intelligence, capacity, discretion and experience would naturally and ordinarily use in the same situation and under the same circumstances.

2. Negligence, § 230*—when instruction on due care of minor erroneous. In an action by a minor tor personal injuries sustained by being run over by defendant’s automobile in a public street, the giving of an instruction telling the jury that in determining whether plaintiff was in the exercise of due care “you are not to consider the fact of his age,” held reversible error.

Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Reversed and remanded.

Opinion filed July 2, 1914.

Statement of the Case.

Action by Robert E. Burke, a minor, against Wallace M. Waterman to recover for personal injuries sustained by plaintiff by being rtin over by defendant’s automobile while plaintiff was upon a public street in Chicago. Upon a trial before a jury a verdict of not guilty was rendered, and from a judgment entered upon the verdict, plaintiff appeals.

John C. King and James D. Power, for plaintiff in error.

Delbert A. Clithero, for defendant in error.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Fitch

delivered the opinion of the court.