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be guilty of negligence as well as adults. The law very manely does not require the same degree of care on the part of a child as of a person of mature years; but he is responsible for the exercise of such care and vigilance as may reasonably be expected of one of his age and capacity; and the want of that degree of care is negligence. The fact that he may not have the mature judgment of an adult will not excuse a child from exercising the degree of judgment and discretion which he possesses, or for disregarding the warnings and orders of his seniors, and heedlessly rushing into known danger. In the Stout case, the defendant made an express disclaimer of any contributory negligence on part of the plaintiff. In the Keffe case, which was disposed of on the pleadings, this court said: "It was not urged upon the argument that plaintiff was guilty of contributory negligence; and we have assumed that he exercised, as he was bound to do, such reasonable care as a child of his age and understanding was capable of using." And, as was remarked in the Keffe case, in the cases cited in support of these "turn-table" cases, "the principal question discussed is not whether the defendant owed the plaintiff the duty of care, but whether the defendant was absolved from liabilty for breach of duty by reason of the fact that the plaintiff was a trespasser, who, by his own act, contributed to the injury; and the distinction is not sharply drawn between the effect of plaintiff's trespass as a bar to his right to require care, and the plaintiff's contributory negligence as a bar to his right to recover for the defendant's failure to exercise such care as it was his duty to use." But the authorities are all one way, and to the effect that even a child is bound to use such reasonable care as one of his age and mental capacity is capable of using; and his failure to do so is negligence: Wendell v. York Central etc. R. R. Co., 91 N. Y. 420; Messenger v. Dennie, 141 Mass. 335; Chicago etc. R'y Co. v. Eininger, 114 Ill. 79; Brown v. European and North American R'y Co., 58 Me. 384; Achtenhagen v. City of Watertown, 18 Wis. 331; 86 Am. Dec. 769; Masser v. Chicago etc. R'y Co., 68 Iowa, 602; Murray v. Richmond etc. R. R. Co., 93 N. C. 92; Ludwig v. Pillsbury, 35 Minn. 256; Railroad Co. v. Gladmon, 15 Wall. 401; Gillespie v. McGowan, 100 Pa. St. 144; 45 Am. Rep. 365.

The evidence in the present case shows without conflict substantially the following facts: The boy was nearly ten and a half years old, and of at least average intelligence. He had been at school since he was six or seven years old. His father

was a railroad man, in the employment of the defendant around the yard and depot, and the boy had been frequently around the railroad grounds and the turn-table with his father. He was evidently familiar, at least in a general way, with the working of the turn-table and the use of the latches. His father had repeatedly warned him against going on the turntable, and told him of the danger, and that he must not go on it. He evidently had quite a lively sense of the danger of playing on the table, and of the manner in which accidents were liable to occur to those swinging on it. The boy himself admits that he knew there was great danger of getting hurt on it. He knew that playing on it was forbidden by the railroad company, and that if its agents saw children doing so, they would drive them off. It is suggested that his motive in going to the table was to try to induce the other boys to get off lest they might get hurt. But if he had such a realizing sense of their danger, so much the more inexcusable was it for him to go and do precisely what he knew was exposing them to danger.

Upon this state of the evidence, the jury, in addition to their general verdict, found the following facts in answer to the following questions submitted to them: "1. Did Verne Twist, when he went to play on this turn-table, on the day when he was hurt, know that it was dangerous? Answer: Yes. 2. Did Verne Twist, when he went to play on this turn-table, on the day when he was hurt, know that he had no right to go there, and that it was dangerous to play on the turn-table? Answer: Yes. 3. Was Verne Twist, when he went to play on this turntable, on the day when he was hurt, of sufficient age and discretion to understand and comprehend the danger he subjected himself to. Answer: No." These special findings must, if possible, be so construed as to be consistent with each other, and also supportable by the evidence. If the third finding means that the boy was of such tender years as to be incapable of exercising any judgment and discretion, or of understanding that his acts exposed him to danger, it would be inconsistent with the other findings, and wholly unsupported by the evidence. In the light of the testimony, and taken in connection with the previous findings, all that it can mean is, that while the boy knew that he had no right to play on the turn-table, and that it was dangerous to do so, yet he did not fully understand or appreciate the extent of the danger in all its possibilities. But this may be said of almost every case

of contributory negligence, even on part of adults. No one voluntarily and unnecessarily enters a danger which he knows to exist without expecting to escape it. In all cases of conscious self-exposure, there is a failure to realize the extent or degree of the risk. But the act is none the less contributory negligence, if the party fails to exercise ordinary care. In the present case, while the boy did not realize the extent of the danger as fully as would an adult, yet he knew that he had no right to go upon the turn-table; that his father had warned him that it was dangerous, and he himself knew that it was dangerous. Yet he goes, a conscious trespasser, and does the forbidden and dangerous act. While we are not disposed to adopt a severe rule by which to judge the conduct of childhood, yet such conduct on part of an intelligent boy of nearly ten and a half years amounts to contributory negligence, and cannot be excused on the plea of childish instincts. We are of opinion that upon the special findings, the defendant was entitled to judgment. The cause is remanded, with directions to the district court to enter judgment for defendant.

NEGLIGENCE. CHILD OF IMMATURE YEARS IS NOT HELD to any greater degree of care than might reasonably be expected of one of his age: Moebus v. Herrman, 108 N. Y. 349; 2 Am. St. Rep. 440. When a child is in the streets, without negligence either on the part of himself or parents, he is bound to use only such reasonable care as he is capable of, though of less degree than adults would be bound to use under the circumstances: Lynch v. Smith, 104 Mass. 52; 6 Am. Rep. 188. And it cannot be held that the same degree of care should be exacted of a child in crossing a railroad track as must be of an adult, in order to avoid the imputation of contributory negligence; and whether the child used such care in attempting to cross the track, and in ascertaining the danger that attended his act, as would be incumbent on one of his age, is a question for the jury: Houston etc. R. R. Co. v. Boozer, 70 Tex. 530; 8 Am. St. Rep. 615; see Keffe v. Railroad Co., 21 Minn. 207; 18 Am. Rep. 393; Gray v. Scott, 66 Pa. St. 345; 5 Am. Rep. 371.

KERR v. MINNESOTA MUTUAL BENEFIT ASS'N.

189 MINNESOTA, 174.]

INSURANCE -SUICIDE BY ASSURED TO AVOID ARREST AND TRIAL FOR CRIME. - A policy of life insurance provided that "if the assured shall die in, or in consequence of, the violation of any criminal law of any country, state, or territory in which the assured may be, this certificate shall be null and void." The assured, in order to escape arrest for the crime of forgery in Minnesota, fled to Canada, where he was discovered and apprehended, and thereupon, to avoid being taken back to Minnesota for trial, shot and killed himself. In such case his death cannot be

treated as the proximate result of his alleged crime, and the fact of his suicide is not in itself to be construed as occurring in or growing out of a violation of law, within the meaning of the policy.

INSURANCE-SUICIDE AS DEFENSE TO ACTION ON POLICY.-In the law of insurance, suicide is not, as a rule, recognized as a ground of exemption from liability, or for the forfeiture of a policy issued for the benefit of a third person, unless it is expressly so provided in the policy.

INSURANCE
MENT.

MUTUAL BENEFIT ASSOCIATION - NON-PAYMENT OF ASSESS- Where the assured in a mutual benefit association died on the twenty-seventh day of July, and he had until the tenth day of the following August in which to pay the last assessment made by the associa tion, he was not in default, and the policy was still in force at the time of his death, and the liability of the association was accordingly fixed, and was unaffected by the fact that no part of such assessment was paid on the date last mentioned.

INSURANCE. CONSTRUCTION OF CONTRACT OF INSURANCE MADE BY MUTUAL BENEFIT ASSOCIATION, and the amount of recovery to which the bene ficiary was entitled under the terms of the contract, determined.

George F. Getty, for the appellant.

Fayette Marsh, for the respondent.

VANDERBURG, J. The plaintiff is the widow of Robert W. Kerr, who, on the twentieth day of April, 1884, became a member of the defendant association, and held a certificate or policy of insurance issued by it at the time of his death, which, defendant claims, was by suicide, July 27, 1885, in the dominion of Canada. The plaintiff is named as the beneficiary in this policy.

1. The policy provides that "if the assured shall die in, or in consequence of, the violation of any criminal law of any country, state, or territory in which the assured may be, this certificate shall be null and void." The defendant offered to prove on the trial that Kerr, in order to escape arrest for the crime of forgery in this state, fled to Canada, where he was discovered and apprehended by detectives, and thereupon, to avoid being brought back to Minnesota for trial, shot and killed himself; that the criminal code of Canada forbade self-murder; and that his suicide was a violation thereof. We think this evidence was properly rejected. His death in Canada cannot be treated as the proximate result of his crime. in Minnesota: Cluff v. Mutual Benefit Life Ins. Co., 13 Allen, 308, 319. And the fact of his suicide is not, in itself, to be construed as occurring in or growing out of a violation of law, within the meaning of the policy. In the law of insurance, suicide is not, as a rule, recognized as a ground of exemption from liability, or for forfeiture of a policy issued for the benefit

of a third person, unless it is expressly so provided in the policy: Mills v. Rebstock, 29 Minn. 380. And under the general language here used, which must be construed favorably to the assured and strictly as against the company, the violation of law referred to in the policy ought not, we think, to be construed to mean or include suicide. Suicide, though strictly a crime, is not reckoned among offenses or violations of law, such as the language of the policy would be commonly understood to refer to. Otherwise construed, the policy would be misleading in its practical operation: Patrick v. Excelsior Life Ins. Co., 67 Barb. 202.

2. The court also rejected an offer by defendant to prove that the last assessment made by the company before the death of the assured was made on the first day of July, 1885, and that notice was duly given to him not later than the tenth day of July, calling for the payment thereof (the amount being ten dollars) not later than the tenth day of August, 1885, at the office of the company in Minneapolis, and that unless the same was paid by said Robert W. Kerr, the beneficiary, or some one for them, on or before the tenth day of August, said policy would be lapsed and void; that on the tenth day of August no part of the same was paid, and the policy was accordingly declared void by the company, before they had any knowledge or notice of his death. The terms of the policy, upon this subject, are: "The holder of this certificate further agrees that if he shall fail to pay to this association any quarterly assessment within forty, and any special assessment within thirty, days from the date of the notice thereof, then, and in every such case, this certificate shall be null and void." But since Kerr died on the twenty-seventh day of July, and he had until the tenth day of August in which to pay the assessment, he was not in default, and the policy was still in force at the time of his death, and the liability of the company was accordingly fixed. The exception to the ruling of the court in this matter cannot, therefore, be sustained. Whether the assessment ought not to be deducted from the amount due plaintiff, the defendant does not ask us to decide. 3. It is alleged and found that the plaintiff gave notice and made and filed due proof with the defendant of the death of the assured more than ninety days before the commencement of this action, and we do not see that the answer puts this allegation in issue. We must assume that the condition of the policy in this respect was complied with.