Members of the jury, any action of this kind is based upon a claim that 
the defendant has been negligent because the law would not permit you to find 
a verdict for the plaintiff or to award any damages unless you should 
conclude first that the accident resulted because of negligence on the part 
of the defendant; secondly, that there was no negligence by the minor 
plaintiff which contributed in any way to the accident; and thirdly, that the 
injuries and the death resulted from the accident itself.
    
Negligence is a failure to use the care and caution which a reasonably 
prudent person would exercise under the same circumstances.  The reason that 
the plaintiff cannot recover without proving negligence on the part of the 
defendant is that the law does not raise any presumption just because an 
accident has occurred, that the defendant has been negligent. That is a 
matter which you would have to find from the testimony. 

On the other hand, the law holds that if a claim is presented on behalf 
of anybody there can be no recovery if that particular person was himself in 
any degree responsible for the accident.  That is what is called contributory 
negligence.  If any negligence on the part of the minor plaintiff contributed 
to the happening of the accident, there could be no recovery.   

In this case, inasmuch as the minor plaintiff died as a result of the 
injuries, the law raises the presumption that he was careful and that he was 
not contributorily negligent.  It would be essential, therefore, for the 
defendant to proof contributory negligence on the part of the boy.  That 
would be one of the questions you would have to take into consideration.   
It is your duty to determine the facts.   It is your duty to reconcile the 
testimony as far as you can, bearing in mind the fact that no two persons 
recount a thing exactly the same.  Bear in mind the further fact that 
there is apt to be the a little confusion on the part of witnesses inexperienced in 
court when they get on the witness stand and consequently, minor discrepancies
may appear.  

You take all those factors into consideration and you bring to bear in 
passing upon the facts, your judgment as to who has been telling you the 
truth.  In other words, you pass upon the credibility of the witnesses.  When 
you do that, you may take into consideration their interest in the outcome of 
the case, if any.  I do not mean that just because a person may be interested 
in the outcome of a case that he or she is not telling the truth because, 
obviously, in many, many instances they do tell the truth.      
That is merely a factor for you to consider. 

You bring to bear all those qualities that you have acquired as adult human beings
which enable you to determine whether a person is being truthful or untruthful. 

Although I shall refer to the facts, you take your recollection at all times in 
preference to anything I may say.  It may be that I will make some error 
inadvertently in discussing the facts or I may overlook something that you 
think is important, so trust your  own recollection.