Baldwin v. Hosley

• Decision Date: 05 June 1959
• Citation: 328 S.W.2d 426
• Parties: Clyde BALDWIN et al., etc., Appellants, v. Lewis HOSLEY et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 426

328 S.W.2d 426

Clyde BALDWIN et al., etc., Appellants, v. Lewis HOSLEY et al., Appellees.

Court of Appeals of Kentucky.

June 5, 1959.

As Modified on Denial of Rehearing Nov. 20, 1959.

William A. Young, Frankfort, for appellants.

Robert H. Measle, Lexington, Marion Rider, Frankfort, for appellees.

STANLEY, Commissioner.

This is a consolidated action by the father, as next friend of Douglas Woodyard Baldwin and David Stephen Baldwin, infants, to recover damages for their personal injuries, and by Clyde and Marjorie Baldwin, their parents, to recover expenses incurred and for lost time from work in order to care for the children during their incapacity. The action is against Lewis Hosley and his wife, Shirley Hosley. A verdict was returned for the defendants, and the plaintiffs prosecute this appeal from the judgment entered thereon.

On December 20, 1956, while Douglas, aged eight, and David, aged Five, were crossing from the north side of East Main Street in Frankfort (which is U. S. Highway No. 60) to their home on the south side, about two hundred feet east of the Memorial Bridge, they were struck by an automobile owned by Lewis Hosley and driven by his wife. This is a heavily traveled street and highway, and the automobile was going downhill.

The evidence of the driver's negligence is that at the scene of the accident, and later at the hospital, when Mrs. Hosley was greatly disturbed, she had said, in the presence of several different witnesses, that the accident was her fault, her windshield was steamy or foggy and she did not see the children. The street is straight, and it would appear that there was nothing other than a steamy windshield to prevent the driver from having seen the children had she been maintaining a proper lookout.

On the other side, the driver's evidence is, in substance, that she was going 25 or 30 mph, the children ran out from behind another car traveling in the same direction but in the lane next to the curb, and that she had applied the emergency brakes but could not avoid striking the children. The street was wet, and there was a misty rain; but her windshield was clear as the wipers and the defroster were operating. The driver denied having made the statements that the accident was her fault.

Instruction No. 1 authorized a finding for the plaintiffs if the jury believed the driver of the car had failed to observe any of the duties therein described. Instruction No. 2 was on contributory negligence of the eight year old child, Douglas Baldwin. It did not refer to the younger boy. The instruction advised the jury that it was the plaintiff's duty at the time and place of the accident to exercise ordinary care generally for his own safety and that he had additional duties as follows:

'1. It is more dangerous to cross a street between intersections than at the intersection, and the infant plaintiff so crossing the street should exercise such increased care in proportion to the increased danger, as a person of his age and experience and of ordinary care and prudence would exercise under like or similar circumstances.

'2. When crossing the street at a point other than the regularly designated crosswalk, it was his duty to keep a lookout for approaching cars, and if he saw, or by the exercise of ordinary care could have seen, defendant's car approaching, not to attempt to pass in front of it if it was so near to him that the driver could not, by the exercise of ordinary care, avoid striking him.

'3. When crossing the highway at a point other than within a marked cross-walk, to yield the rightofway to all vehicles upon the highway, including the vehicle of the defendants, if you believe that defendant's approaching vehicle at that time constituted an immediate hazard to this plaintiff's safety if he continued crossing the street.'

Another instruction defined ordinary care. As it related to the child Douglas, it was defined as meaning 'that degree of care usually exercised by persons of his age, experience, intelligence and discretion under circumstances like or similar to those described in the evidence.' An instruction on sudden appearance of both children which could have exonerated the defendant was also given. The plaintiffs properly objected to the giving of the instruction.

We are of opinion that it was error to give the instruction on contributory negligence because of absence of evidence that might be regarded as overcoming the presumption of law as to the accountability of an eight year old child.

While the law of contributory negligence applicable to adults is applicable to children in general, it is subject to certain fundamental presumptions and qualifications. A young child is not required to conform to the standard of behavior which it is reasonable to expect of an adult. A child may be so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence and judgment which are necessary to enable him to perceive a risk or to realize its unreasonable character. Restatement of the Law of Torts, § 283(e).

It is a basic and traditional concept that children of such tender years as not to have the capacity, mental and physical, of apprehending danger and exercising care for their own safety are presumed to be civilly irresponsible for their acts and are not chargeable with contributory negligence. This legal presumption is conclusive in its application to a child under seven years of age.

This court, as do most others, recognizes that where children are seven and under fourteen years old the law imports a prima facie or rebuttable presumption that they have no capacity for contributory negligence.

Although it be unnecessary in this case, we do not deem it inappropriate in considering contributory negligence of a minor to observe that whenever a child reaches the age of fourteen years, the legal presumption is that he is responsible for his acts of negligence. United States Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S.W. 166, 23 L.R.A.,N.S., 249, 135 Am.St.Rep. 407. But the adult test of the reasonably prudent person cannot be applied in disregard of the actor's youth and inexperience. The degree of care by which an infant is to be measured is constantly advancing as the child increases in stature and wisdom or in mental development, discretion, knowledge and experience. It makes no sudden leap at any particular age. Notes, 107 A.L.R. 142, 144. Cf. Crouch v. Noland, 238 Ky. 575, 38 S.W.2d 471. The fact that a youth is fourteen years of age does not mean that his conduct is measured according to the standard of a mature person, although the prima facie presumption changes and the burden is then on the youth to show want of capacity or understanding. Louisville & N. R. Co. v. Hutton, 220 Ky. 277, 295 S.W. 175, 53 A.L.R. 1328; Lundy v. Brown's Adm'x, 305 Ky. 721, 205 S.W.2d 498; Note, 174 A.L.R. 1148.

Where the child is beyond six years old, the law takes into consideration not only age but also variations in capacity among children of the same age, having regard for the intelligence, discretion or sensitiveness to danger of the particular child to exercise a certain degree of judgment, prudence and caution. The particular youth is held responsible for the exercise of such care for his own safety as that ordinarily exercised under the same or similar circumstances by prudent children of the same age, intelligence and capacity to appreciate the danger, if any, and what cautionary measures should be taken for his own safety. Richie v. Chears, Ky., 288 S.W.2d 660. That is the standard definition of ordinary care by a child. ¹

But where the child is presumably or prima facie free from accountability or responsibility for his negligence, does not an instruction on contributory negligence standing alone--without the prefatory condition--ignore the presumption? Does it not, in fact, import the converse presumption? Does it not put the burden upon the injured child or his representative to prove his incapability of being negligent? We think such an instruction in the absence of evidence showing capacity erroneously recognizes a legal presumption that the child may be guilty of contributory negligence. Harper v. Kopp, 73 S.W. 1127, 24 Ky.Law Rep. 2342.

In reviewing our many cases, we find a cloud of confusion. Several held it to have been proper to give a contributory negligence instruction where the youth was between seven and fourteen years old without referring to the question or effect of the presumption. And we have cases holding it proper to have given such an unconditional instruction instruction where there was uncontradicted evidence that the injured child was unusually bright or had sufficient intelligence and discretion to understand that he was in danger of being struck while crossing a street. Trent v. Norfolk & W. R. Co., 167 Ky. 319, 180 S.W. 792, 793; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Ward v. Music, Ky., 257 S.W.2d 516. However, we have said in several cases that where there may be reasonable differences of opinion, the question of fact whether or not the child in the individual case was capable of contributory negligence should be submitted to the jury. Among these cases are Trent v. Norfolk & W. R. Co., 167 Ky. 319, 180 S.W. 792, 793; Corlew's Adm'r v. Young, 216 Ky. 237, 287 S.W. 706; Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448; Ward v. Music, Ky., 257 S.W.2d 516. This is the general rule. Blashfield, Cyclopedia of Automobile Law, §§ 1521, 1522; 54 Am.Jur., Automobiles, § 777; Annotations, 107 A.L.R. 131, 174 A.L.R. 1134. In United Fuel Gas Co. v. Friend's Adm'x, Ky., 270 S.W.2d 946, where a seven year old boy was killed by a truck while crossing the street with his eight year old brother, both an instruction on contributory negligence and on sudden appearance were given. That was held error. The opinion, after stating the rules of presumption, held that since the defendants had failed...