Ashbaugh v. Trotter

• Decision Date: 08 June 1976
• Docket Number: No. 31018,31018
• Parties: John ASHBAUGH v. Charles Cecil TROTTER, as n/f.
• Court: Georgia Supreme Court

Page 736

226 S.E.2d 736

237 Ga. 46

John ASHBAUGH v. Charles Cecil TROTTER, as n/f.

No. 31018.

Supreme Court of Georgia.

June 8, 1976.

Savell, Williams, Cox & Angel, Edward L. Savell, Atlanta, for appellant.

Coggin, Haddon, Stuckey & Thompson, Fletcher Thompson, Atlanta, for appellee.

INGRAM, Justice.

Certiorari was originally granted in this case 'to review the question of the age at which a child can be chargeable with (primary) negligence or contributory (or comparative) negligence, and to re-examine the holdings in . . . Hatch v. O'Neill, 231 Ga. 446 (202 S.E.2d 44); Brady v. Lewless, 124 Ga.App. 858 (186 S.E.2d 310); and Red Top Cab Co., Inc. v. Cochran, 100 Ga.App. 707 (112 S.E.2d 229).' The decision of the Court of Appeals in this case is reported at 137 Ga.App. 378, 224 S.E.2d 42 (1976). Essentially, it holds that 'a child plaintiff of the age of six years and three months is too young to be capable of contributory negligence.'

The Court of Appeals decision is based on 'adherence to controlling (Court of Appeals) precedent, that being Red Top Cab v. Cochran, . . . supra,' which dictated its judgment under the doctrine of stare decisis. This statement of the narrow holding of the Court of Appeals in this case clearly shows that this court should limit its review to the single issue decided and not, as originally announced, extend its consideration to Hatch v. O'Neill, supra, and Brady v. Lewless, supra.

Both of the latter cases deal with whether an infant defendant under the age of criminal responsibility can be held accountable in tort for alleged negligence. That issue is simply not involved in the present case. Therefore, the holdings in Hatch and Brady, creating as they do, an anomaly in our tort negligence law by applying different standards to infant plaintiffs and infant defendants must await further consideration in an appropriate case.

With that issue that set aside, we direct attention to the specific issue before us: Is an infant plaintiff, age 6 years and 3 months, conclusively presumed to be 'too young to be guilty of contributory negligence?'

The answer to this inquiry is found in Code Ann. § 105-204, which provides, 'Due care in a child of tender years is such care as its capacity, mental and physical, fits it for exercising in the actual circumstances of the occasion and situation under investigation.' Since the Red Top Cab decision does not mention Code Ann. § 105-204, we do not consider it as controlling precedent in this case and we decline to follow it. Instead, we are of the opinion that the plain language of the Code section must be applied and that the question of the infant's alleged negligence is one for the jury in this case under appropriate instructions from the trial court. We think this is the correct rule in Georgia and also is the widely-held view throughout the country. See Restatement of Torts 2d, § 283A, p. 14, ¹ and 65A C.J.S. Negligence § 145, pp. 175-180. See also Patterson v. Cushman, Alaska, 394 P.2d 657, 6 A.L.R.3d 421; Mundy v. Johnson, 84 Idaho 438, 373 P.2d 755; Dennehy v. Jordan Marsh Co., 321 Mass. 78, 71 N.E.2d 758 (1947); Pelzer v. Lange, 254 Minn. 46, 93 N.W.2d 666 (1959); Ligon v. Green, 206 S.W.2d 629 (Tex.Civ.App.1947); Courtell v. McEachen, 51 Cal.2d 448, 334 P.2d 870 (1959); Transit System v. Bates, 104 U.S.AppD.C. 386, 262 F.2d 697 (1958); Grace v. Kumalaa,, 47 Haw. 281, 386 P.2d 872 (1963); De Groot v. Van Akkeren, 225 Wis. 105, 273 N.W. 725 (1937); Gilbert v. Quinet, 91 Ariz. 29, 369 P.2d 267 (1962); Brinkley Car Works & Mfg. Co. v. Cooper, 70 Ark. 331, 67 S.W. 752 (1902); Altieri v. D'Onofrio, 21 Conn.Sup. 1, 140 A.2d 887 (1958); Dillman v. Mitchell, 13 N.J. 412, 99 A.2d 809 (1953); Boyett v. Airline Lumber Co., 277 P.2d 676 (Okl.1954); Doyen v. Lamb, 75 S.D. 77, 59 N.W.2d 550 (1953); Serano v. N.Y.C. & H.R. Co., 188 N.Y. 156, 80 N.E. 1025 (1907); Taylor v. Barlly, 216 Md. 94, 140 A.2d 173 (1958); Shipp v. Curtis, 318 F.2d 797 (9th Cir. Wash.1963); Jennings v. Ebie, 147 N.E.2d 139 (Ohio Common Pleas, 1958); Johnson v. Selindh, 221 Iowa 378, 265 N.W. 622 (1936); City of Knoxville v. Camper, 21 Tenn.App. 210, 108 S.W.2d 787; Vitale v. Smith Auto Sales Co., 101 Vt. 477, 144 A. 380 (1929).

Judgment reversed.

All the Justices concur.

1 Restatement, Torts 2d § 283A provides: 'If the actor is a child, the standard of conduct to which he must conform to avoid...