Cox v. Hugo, 34538
| Decision Date | 28 August 1958 |
| Docket Number | No. 34538,34538 |
| Parties | Deborah COX, a minor, by Richard Cox, her Guardian ad litem, and Richard Cox and Gayle Cox, husband and wife, Respondents and Cross-Appellants, v. Arthur HUGO and Helen Hugo, husband and wife, Appellants. |
| Court | Washington Supreme Court |
Del Cary Smith, Del Cary Smith, Jr., Spokane, for appellants.
Cashatt & Williams, James P. Connelly, Spokane, for respondents.
Deborah Cox, five years and eight months of age, was severely burned when her clothing ignited while playing in or near the remains of a small trash (a cardboard box filled with paper) fire started by thirteen-year-old son of the defendants, Mr. and Mrs. Arthur Hugo. It had been started at his mother's direction, and was about three feet inside the curb line adjacent to the Hugo property on ground which was part of the street, but not used as such. The fire burned down and seemed to be out when Deborah started playing around it, but in some manner it ignited her clothing.
Deborah, suing by her guardian ad litem, sought to recover damages for her injuries from Mr. and Mrs. Hugo. Her parents, Mr. and Mrs. Richard Cox, sought recovery from the Hugos in a separate cause of action for doctor and hospital bills theretofore and thereafter to be incurred. Both causes of action were joined in the same complaint and were founded upon alleged negligence in failing to exercise ordinary care in starting, maintaining, and extinguishing the fire.
The jury returned a verdict for the defendants on both causes of action.
The trial court granted Deborah a new trial on her of action, and the defendants appeal from that order. It denied her parents a new trial on their cause of action, and from that order they appeal.
Deborah was granted a new trial for the reason that the trial court had admitted evidence which tended to establish her contributory negligence. Although the trial court ultimately took that issue from the jury, it had observed the reaction of the jury to that testimony, and was
'* * * thoroughly convinced that said testimony definitely influenced the jury in reaching the decision it did and was prejudicial to the plaintiff Deborah Cox's cause of action.'
The trial court was 'convinced that the admission of said testimony deprived the plaintiff Deborah Cox of substantial justice in the trial of the first cause of action.'
In addition, the trial court believed
'* * * that the co-mingling of evidence touching on the plaintiff Deborah Cox's contributory negligence, and evidence relating to the parents Richard Cox and Gayle Cox's contributory negligence, confused the jury and substantial justice was not done.'
The defendants, appealing from the order granting a new trial, urge: First, that the trial court erred in taking the issue of the child's contributory negligence from the jury, and that they were, under the circumstances of the case, entitled to have that issue go to the jury; second, that if any error was committed in admitting the evidence of the child's contributory negligence, it was cured when the jury was instructed,
'* * * that a child of this age has usually not reached the period of mental development which will bring discretion or discriminating care even in its own self-protection, and you are instructed to wholly disregard any allegations or testimony in any manner tending to establish any negligence of any kind on the part of said child.'
The defendants make an intriguing argument, and cite one case as authority for the proposition that the contributory negligence of a child five years old is a question for the jury, Voegli v. The Pickel Marble & Granite Co., 1892, 49 Mo.App. 643. We think the case hardly goes that far. What the court said was,
'If it [the child's contributory negligence] could be made a question at all, it would be one of fact for the jury, and, as the defendant failed to make the defense by answer, it was not entitled to have the question submitted.'
We are not persuaded that we should abandon the rule approved in Von Saxe v. Barnett, 1923, 125 Wash. 639, 217 P. 62, that in cases of injury to children between five and six years (and, of course, under five) there is a conclusive presumption that they could not be contributory negligent.
Judge Holcomb, in that case, indicated that the authorities justified a three-way division: (a) under six years of age a conclusive presumption that a child was incapable of contributory negligence; (b) six to perhaps fourteen, a prima facie presumption, which could be rebutted by evidence of unusual natural capacity, physical condition, training habits, experience, surroundings, and the like; (c) over fourteen, the burden should be on the infant to show want of capacity, if that was in issue.
We decide nothing here, except that under six there is a conclusive presumption that a child cannot be contributory negligent.
We did not justify the rule on the basis that a child of that age was lacking in knowledge of danger, but because it was lacking in judgment and discretion. In that case we said, speaking of a child of five years and four months (125 Wash. at page 645, 217 P. at page 64),
The court also said in...
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Zellmer v. Zellmer
...1057 (1959) (disallowing negligence action against parent who instructed son to siphon gas, resulting in burn injuries); Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467 (1958) (disallowing contribution claim against parent who failed to prevent child from wandering into neighbor's yard where she ......
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Graving v. Dorn
...of a child was involved, and in some measure discussed, convinces us we have been an adherent of the modified approach. In Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467, we held that a child under six could not be contributorially negligent. In so holding, we stated (52 Wash.2d p. 818, 329 P.2d......
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...WE CONCUR: COX, C.J., and BAKER, J. 1. Baughn v. Honda Motor Co., 105 Wash.2d 118, 119, 712 P.2d 293 (1986); Cox v. Hugo, 52 Wash.2d 815, 820-21, 329 P.2d 467 (1958). A parent is not immune where a failure to supervise amounts to willful or wanton misconduct, Jenkins v. Snohomish County Pub......
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Smelser v. Paul
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Table of Cases
.... . . 48.08[1][a] Cowles Publ'g. Co. v. Murphy, 96 Wn.2d 584, 637 P.2d 966 (1981) . . . . . . . . . . . . . . . . . . . 25.03 Cox v. Hugo, 52 Wn.2d 815, 329 P.2d 467 (1958). . . . . . . . . . . . . . . . . . .75.06[2][d][i] Cox v. Kroger Co., 2 Wn. App. 2d 395, 409 P.3d 1191 (2018) . . . . ......
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§75.06 The Third Party and the Marital Community
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