Dallas Ry. & Terminal Co. v. Rogers

• Decision Date: 09 March 1949
• Docket Number: No. A-1953.,A-1953.
• Parties: DALLAS RY. & TERMINAL CO. v. ROGERS et al.
• Court: Texas Supreme Court

Page 456

218 S.W.2d 456

DALLAS RY. & TERMINAL CO. v. ROGERS et al.

No. A-1953.

Supreme Court of Texas.

March 9, 1949.

Rehearing Denied April 6, 1949.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Action by H. E. Rogers, as next friend for his minor daughter, Venetia Rogers, and in his own behalf, against the Dallas Railway & Terminal Company, to recover damages for injuries and recover for losses of services and medical expense. Judgment for defendant was reversed by the Court of Civil Appeals, 214 S.W.2d 160, and defendant brings error.

Judgment of the Court of Civil Appeals affirmed.

Burford, Ryburn, Hincks & Ford, Bruce Graham and Howard Jensen, all of Dallas, for petitioner.

Golden, Croley & Howell, Ralph Howell, Jr., and Thomas T. Lewis, all of Dallas for respondents.

SMEDLEY, Justice.

Respondent H. E. Rogers for himself and as next friend of his eleven year old daughter, Venetia, brought this action against petitioner for the recovery of damages arising from injuries suffered by the child when she was struck by petitioner's bus at a street intersection in the business district of the City of Dallas. Judgment was rendered for petitioner, the defendant in trial court, on account of the jury's findings that the child was guilty of contributory negligence in failing to keep a proper lookout and in failing to stop immediately prior to the impact. The Court of Civil Appeals reversed the trial court's judgment and remanded the cause. 214 S.W.2d 160.

In reversing the judgment of the trial court, the Court of Civil Appeals sustained respondents' contention, made by exceptions, by objections to the court's charge, and by requested issues and definitions, that the eleven year old child was not required to use the same care as that required of an adult, but only such care as an ordinarily prudent person of the age, intelligence, experience and capacity of the child would have exercised under the same or similar circumstances.

The bus, which had been driven east on Elm Street, had stopped at the intersection of Harwood street awaiting a green signal light before making a left turn to a passenger stop on Harwood street. Venetia Rogers, who with several other girls had walked north across Elm street, paused at the corner to await the green signal light before going east across Harwood street. When the light changed the child started across Harwood street and collided with or was struck by the bus as it turned to the left into that street. The testimony showed that Venetia Rogers was an intelligent child, that her grades in school were satisfactory, that she had been given instructions in safety and had from time to time been in the business district with her parents and with other children and realized the danger of traffic and the necessity of being careful. No attempt was made to prove that she was not a normally intelligent child.

The jury in answer to special issues found that the driver of the bus was negligent in failing to keep a proper lookout and in failing to sound the horn, and that his negligence in each of these respects was a proximate cause of the collision. It also found that Venetia Rogers "failed to keep a proper lookout for the defendant's bus" as she entered the crosswalk and "failed to keep a proper lookout for the bus immediately before the impact", and that "the failure of Venetia Rogers to stop immediately prior to the impact was a failure to exercise ordinary care". It further found that the failure of Venetia Rogers in each of these respects proximately caused or proximately contributed to cause the accident.

The trial court, in its instructions preceding the special issues in the charge, defined "ordinary care" as "such care as a person of ordinary prudence would use under the same or similar circumstances"; defined "negligence" as "the failure to use ordinary care"; and defined "proper lookout" as "such lookout as a person of ordinary prudence would have kept under the same or similar circumstances". This part of the charge, in defining "proximate cause" and "proximately contributed to cause", described the result as one that reasonably would have been anticipated by a person of ordinary prudence.

Respondents made explicit objections to these definitions and instructions on the ground that they were not confined by the court to the issues relating to the conduct of the driver of the bus, but were directed and applied as well to the issues involving the conduct of the minor plaintiff, notwithstanding the fact that she was but eleven years of age, and that the effect of the definitions and instructions was to impose upon the child a greater degree of care than that required of her by law.

Respondents also filed requests for definitions and instructions relating to the issues as to the child's conduct. The substance of these is that by "negligence" as applied to the child is meant the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of the child would not do, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience and capacity of the child would do, under the same or similar circumstances; that "proper lookout" and "ordinary care" as used in the special issues applying to the child mean such lookout as would have been kept, and such care as would have been exercised, by an ordinarily prudent person of like age, intelligence, experience and capacity under the same or similar circumstances. The objections were overruled and the requests for special definitions and instructions were rejected. The effect of the trial court's charge and its refusal to give the instructions and definitions requested by respondents was that the court instructed the jury with reference to the issues of contributory negligence to measure the conduct of the minor respondent by the same standard as that applied to the conduct of an adult. This, as shown by the authorities cited in the opinion of the Court of Civil Appeals, does not conform to the well settled applicable principle, which is that a child of tender years is not bound to exercise for its own safety the care required of an adult, the standard by which to measure the child's conduct being that degree of care ordinarily exercised by children of the same age, intelligence, experience and capacity under the same or similar circumstances. Houston & T. C. Ry. Co. v. Boozer, 70 Tex. 530, 537, 8 S.W. 119, 8 Am.St.Rep. 615; Texas & Pacific Ry. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852; Washington & Georgetown R. R. Co. v. Gladmon, 15 Wall. 401, 21 L.Ed. 114; 38 Am.Jur. pp. 884, 885, Sec. 204; Note 107 A.L.R. pp. 4, 7, and following; Restatement of the Law, Torts, Vol. 2, pp. 743-745, Sec. 283, e, Sec. 284, b.

Petitioner does not dispute the general rule, but takes the position that the trial court did not err in instructing the jury to measure the conduct of the child by the standard required of an adult, because in this case there is no evidence that the child was under any handicap in intelligence or understanding, the evidence on the contrary being that she was normal or above normal, for a child of her age, in intelligence, experience and understanding.

This position cannot be sustained. To sustain it would mean that the court must assume or presume that, in the absence of evidence of mental deficiency, an eleven year old child would ordinarily exercise the same care for its own safety that an ordinarily prudent adult would exercise. Such an assumption or presumption would violate the established rule that the adult standard of conduct is not required of a child, and it would be in contradiction of human experience. We know that a child of such immaturity as the minor respondent ordinarily does not exercise, and is not expected to exercise, for its own safety, the discretion and judgment of an adult. It seems necessarily to follow that the court's charge, which in effect directs the jury in answering the issues relating to the child's contributory negligence, to judge her conduct as it would judge that of an adult, deprives the child of the benefit of an established rule of law, and is reasonably calculated to induce the jury to find that she was negligent because an ordinarily prudent adult would have been negligent had he, under the same circumstances, acted as did the child. When a standard is set up in the charge, it should be the standard of the established rule, permitting the jury to measure the child's conduct by that of the ordinarily prudent person of like age, experience, intelligence and capacity.

These conclusions are supported by the decisions, including those of this State. In Dr. Pepper Bottling Co. v. Rainboldt, Tex. Civ.App., 66 S.W.2d 496, 502, contributory negligence of the plaintiff, six years old, was alleged as a defense. The court in submitting the issue of contributory negligence defined negligence as applied to the child to be "the doing of that which an ordinarily prudent person of the age, intelligence, experience and capacity of such child, would not do under the same or similar circumstances, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience and capacity of such child, would do under the same or similar circumstances." The Court of Civil Appeals held that by this charge the jury was correctly instructed. The Supreme Court reversed the judgment of the Court of Civil Appeals and remanded the cause on account of an error in the submission of the question of unavoidable accident. The opinion contains this paragraph, which we believe is an express approval by this Court of the holding of the Court of Civil Appeals as to the correctness of the instruction relating to the child's negligence, above quoted: "We approve the holding of the Court of Civil Appeals upon the question of the company's liability for the acts of Schroeder's helper, Graham; also upon the...