Bixenman v. Hall

• Decision Date: 31 December 1968
• Docket Number: No. 20664--1268S209,20664--1268S209
• Citation: 251 Ind. 527,242 N.E.2d 837
• Parties: Lester R. BIXENMAN, Appellant, v. Alice B. HALL; Lake County Agricultural Society and Merritt C. Busselberg, Appellees.
• Court: Indiana Supreme Court

Page 837

242 N.E.2d 837

251 Ind. 527

Lester R. BIXENMAN, Appellant, v. Alice B. HALL; Lake County Agricultural Society and Merritt

C. Busselberg, Appellees.

No. 20664--1268S209.

Supreme Court of Indiana.

Dec. 31, 1968.

William F. Carroll, Carroll & Bielefeld, Crown, Point, Philip M. Cagen, Cagen & Andersen, Valparaiso, for appellant.

Lawyer, Schroer & Eichhorn, William H. Eichhorn, Hammond, Chester, Clifford, Hoeppner & Houran, Valparaiso, for appellees.

HUNTER, Judge.

On August 18, 1964, Dean Edward Bixenman, 13 years of age, was fatally injured while riding his bicycle when he was involved in a collision with an automobile driven by appellee Alice B. Hall and a truck owned by the Lake County Agricultural Society which was driven by one Merritt C. Busselberg. There was evidence in the record to indicate that young Bixenman was riding his bicycle on the wrong side of the road at the time of the occurrence. The deceased boy's father, Lester R. Bixenman brought this action for damages pursuant to Ind.Ann.Stat. § 2--217 (1968).

After trial by jury, the trial court gave the following instructions to the jury:

Defendant's Instruction No. 12

A statute of the State of Indiana, in full force and effect at the time of the accident in controversy, provided as follows:

'Driving to the left of center of roadway further limitations.--(a) No vehicle or bicycle shall at any time be driven to the left side of the roadway under the following conditions: When approaching within 100 feet of or traversing any intersection * * *.'

If you find from a fair preponderance of the evidence in this case that at the time of the accident in controversy the Plaintiff's decedent failed to obey the provisions of this statute, then such conduct upon the part of the Plaintiff's decedent would constitute negligence.

Plaintiff's Instruction No. 9

If you find from a preponderance of the evidence that at the time of his death Dean E. Bixenman was a child 13 years of age, you are instructed that he was bound only to exercise such care for his own safety as would ordinarily be exercised by children of like age, knowledge, judgment and experience under the facts, circumstances and conditions disclosed by all of the evidence herein.

Defendant's Instruction 12, supra, was objected to by the Plaintiff-Petitioner on the ground that it is mandatory and allows the jury to find contributory negligence without consideration of the minor decedent's age, training, intelligence and experience and requires that the same standard of care be applied to the child involved in this case as would be applied to an adult.

On the basis of the instructions given by the trial court, including those quoted above, the jury returned a verdict for the defendant, Hall. On appeal, the Appellate Court affirmed the judgment of the trial court. With reference to whether a special standard of care should be applied to a child who violates a safety regulation, the Appellate Court stated:

'Upon a review of this issue, we find that it has been the subject of much litigation which advocates a special exemption for children under the statutory violation cases. (citing 174 A.L.R. 1171; 26 S.Cal.L.Rev. 355, 37 Texas L.Rev. 255, 3 Vand.L.Rev. 145, 48 Ky.L.J. 601)

'However, we believe that under Indiana law, no such special treatment for children exists.' Bixenman v. Hall (1967), Ind.App., 231 N.E.2d 530, 536.

The case is now before us on plaintiff-appellant's petition to transfer.

The Appellate Court bases its position that no special treatment for children exists in Indiana upon Ewing v. Biddle (1966), Ind.App., 216 N.E.2d 863. However, the court in Ewing expressly refused to hold that age, intelligence and experience should not be considered in determining the standard of care of a child. In the Court's words:

'Appellants urge that in the case at bar, the question of whether or not Richard Paul Ewing exercised reasonable care for his own safety, consideration should be made for his age and experience. We are not saying here that such an instruction would be erroneous, but we might say as well that the same standard * * * could be urged in the case of elderly and infirm persons.

* * * (W)e find no substantial proof of negligence on the part of the appellee (defendant).'

Thus Ewing v. Biddle, supra, does not support the proposition for which it was cited by the Appellate Court.

The effect of the violation of a statute or ordinance upon a child's standard of care has never been specifically dealt with in Indiana, except to the extent that in Ewing v. Biddle, supra, the court stated that it would not label as erroneous an instruction on the age and experience of the child where violation of a statute by such child is the basis for a claim of contributory negligence.

Indeed, it was specifically stated in Garatoni v. Teegarden (1958), 129 Ind.App. 500, 154 N.E.2d 379 that no Indiana case had been brought to the attention of the Court which discussed the effect of a child's violation of a statute or ordinance upon the standard of care to be applied to the child. Liability claims based upon or defended upon the basis of a violation of a safety statute have been and are today framed and disposed of in terms of negligence law. Lee v. Dickerson (1961), 131 Ind.App. 422, 171 N.E.2d 698; Freeport Motor Casualty Co. v. Chafin (1960), 131 Ind.App. 362, 170 N.E.2d 819; Larkins v. Kohlmeyer (1951), 229 Ind. 391, 98 N.E.2d 896; Hill v. Chicago I & L. RR. (1919), 188 Ind. 130, 122 N.E. 321. As we recognized recently in the case of Davison v. Williams (1968), Ind., 235 N.E.2d 90, the factor of 'fault'--lack of reasonable care--is the factor upon which the presence or absence of negligence depends. It was held in Davison that where an adult person violates a safety regulation, the proof of that violation will raise only a rebuttable presumption of negligence which can be overcome by proof that the party guilty of the violation exercised the care required of a reasonable prudent adult under similar circumstances. As noted, however, the Davison case involved an adult violator.

Indiana long ago adopted the rule that in negligence cases, the standard of care applicable to a child engaged in the type of activity characteristically engaged in by children is that degree of care that would ordinarily be exercised by children of like age, knowledge, judgment and experience under similar circumstances. Tabor v. Continental Baking Co. (1941), 110 Ind.App. 633, 38 N.E.2d 257; Town of Argos v. Harley (1943), 114 Ind.App. 290, 49 N.E.2d 552.

We believe it would be grossly illogical for this Court to apply this special standard of care to all cases where it would otherwise be applicable, notwithstanding the violation of a safety regulation by the child, and yet apply a consistent standard of care in all cases involving adults without regard to safety regulation infringements.

There is a further reason we believe logic demands that special consideration be given to children in negligence cases, even where a violation of a safety regulation is involved. If we were not to apply the special children's standard of care in cases such as the one before us, where the child has violated a safety regulation, the child would be held civilly liable for violating criminal statutes, but criminal responsibility therefor would be excused because of the age of the violator.

'In civil law, the infant is presumed not to have the adult's capacity to perceive danger; therefore, his conduct is measured by a special standard of behavior. In criminal law, the same infant is presumed incapable of committing a crime because he is presumed not to possess criminal intent. To declare that he is negligent per se in civil law, thereby depriving him of the usual consideration given in that sphere of the law, because he violated a criminal statute, when the...