So it is held
that, in cases where he is the plaintiff, an infant of very
tender years is only bound to take the precautions of which an
infant is capable; the same principle may be cautiously applied
where he is defendant. /1/ Insanity is a more difficult matter to
deal with, and no general rule can be laid down about it. There
is no doubt that in many cases a man may be insane, and yet
perfectly capable of taking the precautions, and of being
influenced by the motives, which the circumstances demand. But if
insanity of a pronounced type exists, manifestly incapacitating
the sufferer from complying with the rule which he has broken,
good sense would require it to be admitted as an excuse.
Taking the qualification last established in connection with the
general proposition previously laid down, it will [110] now be
assumed that, on the one hand, the law presumes or requires a man
to possess ordinary capacity to avoid harming his neighbors,
unless a clear and manifest incapacity be shown; but that, on the
other, it does not in general hold him liable for unintentional
injury, unless, possessing such capacity, he might and ought to
have foreseen the danger, or, in other words, unless a man of
ordinary intelligence and forethought would have been to blame
for acting as he did.
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