Cummings v. Los Angeles County

• Decision Date: 20 July 1961
• Parties: , 363 P.2d 900 David CUMMINGS, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent. L.A. 26156
• Court: California Supreme Court

Page 668

14 Cal.Rptr. 668

56 Cal.2d 258, 363 P.2d 900

David CUMMINGS, a Minor, etc., Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Defendant and Respondent.

L.A. 26156.

Supreme Court of California

July 20, 1961.

J. Paul Madsen, Los Angeles, for plaintiff-appellant.

Ball, Hunt & Hart and Clark Heggeness, Long Beach, for defendant-respondent.

PETERS, Justice.

Plaintiff appeals from a judgment in favor of defendant in an action for damages for personal injuries sustained when the minor plaintiff was struck by defendant's automobile. It is contended on this appeal that the giving of certain instructions and the refusal to give others constituted prejudicial error.

The facts pertinent to the problems involved are as follows.

The minor (hereafter referred to as 'plaintiff'), who was seven years old at the time of the accident, was walking on the east shoulder of a public highway with some other boys, al of whom were proceeding north with their backs to northbound traffic. It was daylight, and the weather was clear and dry. Defendant's automobile, driven by its agent, was proceeding northerly, behind a large covered truck, at a speed of 25 to 30 miles per hour. The driver of defendant's car testified that he saw plaintiff when his car was about 100 feet to a block southerly of the boys. At that time plaintiff was on the shoulder, from two to six feet east of the paved portion of the roadway. The testimony is conflicting as to whether plaintiff was standing, walking, trotting or running at that moment. In any event, defendant's driver testified that, on seeing plaintiff, he released the pressure of his foot on the accelerator, but did not immediately apply his brakes or sould his horn. From this point on, the testimony is in conflict. Defendant's driver testified that the plaintiff darted in front of his car, without seeing or looking at it, when it was but 10 to 20 feet south of him, and was struck on the highway proper. On the other hand, plaintiff produced evidence from which it can reasonably be inferred that defendant's driver attempted to pass the truck ahead of him, and, being blocked by a car approaching in the other direction, swerved back, too far, to his right and struck the plaintiff while he was on the shoulder of the road rather than on the highway. There was evidence that the car left 24 feet of skid marks on the highway, but again there was a conflict as to whether these marks were made by the front and rear right wheels (which would place the point of impact on the highway), or by the front and rear left wheels (which would indicate that the accident took place on the shoulder). There was no conflict as to the fact that defendant's car did force a southbound automobile off the highway, but the defendant's driver testified that this was because he swerved to his left, after the boy ran in front of him, in an unsuccessful attempt to avoid impact.

Plaintiff did not testify as to the facts of the accident, he having suffered retrograde amnesia, among other things, as a result of his injuries.

Both parties concede that plaintiff was struck on the head by the right front headlight of defendant's automobile. The chief factual conflict concerned whether the point of impact was on the shoulder, one foot east of the paved portion of the highway, or in the northbound lane, four feet west of the shoulder. There was substantial evidence to sustain either conclusion. Since the jury returned a verdict for defendant there is an implied finding that it resolved this conflict against plaintiff by finding him guilty of contributory negligence. This is necessarily so because if the jury had found that the accident occurred on the shoulder, in the manner described by plaintiff's witnesses, there would have been no room for consideration of contributory negligence, and a plaintiff's verdict would have necessarily resulted. Thus the instructions on negligence and contributory negligence were of vital importance. The appeal is predicated upon alleged error in the giving and refusing of instructions in these two fields.

Plaintiff's principal contention is that the instructions, as given, misstate the law of contributory negligence applicable to a child seven years of age. At the request of defendant, the court charged the jury in the following language:

'Section 562 (now section 21954) of the California Vehicle Code provides:

'Crossing at Other Than Crosswalks.

'(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway.

'(b) The provisions of this section shall not relieve the driver of a vehicle from the duty to exercise due care for the safety of any pedestrian upon a roadway.

'If a party to this action violated the sections of the statute just read to you, a presumption arises that he was negligent. This presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable or justifiable.

'To prove that a violation of a statute such as that charged in this case was excusable or justifiable so as to overcome the presumption of negligence, the evidence must support a finding that the person who violated the statute did what might reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances.'

This instruction applied equally to the actions of David in running onto the highway, if the jury found that he did, and the actions of the driver in failing to exercise due care for the safety of a pedestrian, if the jury should find that the driver failed to exercise such care. Standing alone, the instruction is clearly erroneous. Its vice is that it states that a breach of the statute creates a presumption of negligence that can only be overcome by the violator, whether he be child or adult, by doing 'what might reasonably be expected of a person of ordinary prudence who desired to comply with the law, acting under similar circumstances.' In other words, the instruction directly and unequivocally imposes the same standard of care on the child as it imposes on the adult. This, of course, is not the law. Children are judged by a special subjective standard and not by the objective standard set forth in the instruction. They are only required to exercise that degree of care expected of children of like age, experience and intelligence. The presumption of negligence or negligence per se instruction here challenged, takes that protection away from the child. The per se negligence instruction, taken alone, when applied to children, is totally inconsistent with the body of law that has grown up to protect children. The per se negligence instruction is predicated on the theory that the Legislature has adopted a statutory standard of conduct that no reasonable man would violate, and that all reasonable adults would or should know such standard. But this concept does not apply to children. It is absurd to presume that a child of seven, as a matter of law, knows all of the standards of conduct set forth in the Vehicle Code. For this reason the California law is well settled that, although a violation of a criminal law of this nature creates a presumption of negligence, the presumption may be rebutted by a showing that the child, in spite of the violation of the statute, exercised the care that children of his maturity, intelligence and capacity ordinarily exercise under similar circumstances. Mecchi v. Lyon Van & Storage Co., 38 CalApp.2d 674, 684, 102 P.2d 422, 104 P.2d 26. The proper rule was stated in Galbraith v. Thompson, 108 Cal.App.2d 617, 239 P.2d 468, holding that even though a child's action was in violation of section 562 of the Vehicle Code, the question as to whether this should be considered negligence per se was for the jury to determine under the special standards created for the protection of children, and that the rule that a child is only held to a standard of care in accordance with its age and circumstances must prevail over the rule that violation of a statute is negligence per se. This the challenged instruction did not tell the jury. Standing alone, it was, for this reason, clearly erroneous. ¹

Defendant urges that plaintiff is in no position to complain of this error, because he should have requested the court to modify the challenged instruction, or requested it to give another in its place and stead, and, having failed to do so, cannot now complain. For this proposition defendant relies on Ornales v. Wigger, 35 Cal.2d 474, 218 P.2d 531, which announces the general rule that before the appellant may complain of the lack of an instruction he must have made some request in the matter. Such rule has no application to situations where the court gives an erroneous instruction. An erroneous instruction can always be challenged on appeal. Rivera v. Parma, 54 Cal.2d 313, 5 Cal.Rptr. 665; Colgrove v. Lompoc, etc., Club, 51 Cal. App.2d 18, 124 P.2d 128. Moreover the record shows that appellant did request a modifying instruction which was refused by the trial court. This point urged by defendant is without merit.

The defendant next contends that, even if it would have been error to give the challenged instruction without modification, here there was given such a modification in that the trial court gave proper instructions on contributory negligence of children, including a proper description of the standard of care required of them.

After giving several standard instructions on contributory negligence, the trial court included in its charge the following:

'A child is not held to the same standard of conduct as an adult and is only required to exercise that degree of care which ordinarily is exercised by children of like age, mental capacity and experience. There is no precise age...