Arivabeno v. Nuse

• Decision Date: 28 September 1934
• Docket Number: No. 22/35.,22/35.
• Citation: 174 A. 691
• Parties: ARIVABENO v. NUSE.
• Court: New Jersey Supreme Court

174 A. 691

ARIVABENO

v. NUSE.

No. 22/35.

Supreme Court of New Jersey.

Sept. 28, 1934.

Appeal from Court of Common Pleas, Somerset County.

Action by Alfred Arivabeno, by his next friend, Charles Arivabeno, and Charles Arivabeno individually against Reuben Nuse. Judgment for plaintiff, and defendant appeals.

Affirmed.

Argued May term, 1934, before BROGAN, C. J., and PARKER and BODINE, JJ.

W. S. Angleman, of Plainfield, for appellants.

King & Vogt, of Morristown, for respondent.

BODINE, Justice.

The plaintiff appeals from a jury verdict of no cause of action. The sole ground of appeal is predicated upon an exception to the court's charge. The plaintiff, an infant 5 years and 10 months and 22 days old, was injured by the defendant's automobile while playing with other boys in the street. None of the testimony is printed except that relating to the boy's age.

The learned trial judge charged the jury as follows: "In considering the question as to whether there would be contributory negligence on the part of this boy, you will take into consideration his age and intelligence, for he can only be held to that degree of care which a boy of his age and intelligence would ordinarily exercise. He was slightly under six years of age, and of course a boy of that age could not be held to the same degree of care as you would hold an adult to. If you find that he failed to exercise such care as a reasonably prudent person of his age, intelligence and experience should exercise, and that by reason of his lack of such due care this accident occurred, and that his negligence contributed to the accident and injury, then plaintiffs cannot recover, irrespective of the question of whether the defendant was or was not negligent."

The sole ground of exception was that there was no such conception in law as contributory negligence by a 5 year old infant. The record is inadequate. At all events, we can only review the charge upon the very narrow ground presented. The rule does not prevail in this state that an infant between 5 and 6 years of age may not, as a matter of law, contribute by his negligence to his injury.

Chancellor Walker, speaking for the Court of Errors and Appeals, in a case in which the infant was 6 1/2 years of age, said: "* * *, The degree of care required of a child old enough to be capable of negligence is such as is usually exercised by persons of similar age, judgment, and experience, and in order to determine whether a child old enough to be capable of negligence has been guilty of contributory negligence, it is necessary to take into consideration the age of the child, its experience, and capacity to understand and avoid dangers to which it is exposed in the actual circumstances and situation under investigation, and it is usually a question for the jury to determine whether a child has been guilty of contributory negligence." Iaconio v. D'Angelo, 104 N. J. Law, 506, 142 A. 46, 47, 58 A. L. R. 614.

Although the law presumes that a child not over 6 years of age has not contributed by his or her negligence to the happening of the accident, the presumption is not conclusive, and may be rebutted by proof to the contrary. The presence of proof would make the case one for the jury. Altieri v. Public Service Railway Co., 101 N. J. Law, 241, 244, 128 A. 547. Since it is stated in the respondent's brief that there was proof to rebut the presumption, we cannot assume that there was none. As before indicated, it does not appear from the record that a motion was made to control the jury on the question of contributory negligence. Since the appellant has not brought up more than the court's charge to the jury, we can only determine its correctness in the particular challenged. If the presumption was not rebutted, a motion for a binding instruction...