Gottschalk v. Rudes

• Decision Date: 14 May 1958
• Docket Number: No. 13340,13340
• Citation: 315 S.W.2d 361
• Parties: Bernard A. GOTTSCHALK et al., Appellants, v. Gerald W. RUDES, Appellee.
• Court: Texas Court of Appeals

Page 361

315 S.W.2d 361

Bernard A. GOTTSCHALK et al., Appellants, v. Gerald W. RUDES, Appellee.

No. 13340.

Court of Civil Appeals of Texas, San Antonio.

May 14, 1958.

Rehearing Denied July 23, 1958.

Lieck & Lieck, San Antonio, for appellants.

Carl Wright Johnson, Alfred W. Offer, San Antonio, for appellee.

BARROW, Justice.

This is a personal injury suit brought by Bernard A. Gottschalk, individually and as next friend for William Charles Gottschalk, a minor, against Gerald W. Rudes as defendant. Plaintiffs charged a number of acts of negligence and the defendant charged acts of contributory negligence against the minor plaintiff. The jury found two acts of negligence on the part of the defendant, which were a proximate cause of the minor plaintiff's injuries, and found one issue of contributory negligence against the minor plaintiff. Upon this verdict of the jury, the court entered judgment for the defendant and plaintiffs appealed.

The facts, in brief, are that the accident occurred just about dusk on October 16, 1954, as the minor plaintiff, who lacked two days of being eight years old, was attempting to push his bicycle across an expressway in San Antonio at the San Marcos Street exit. The defendant was operating his automobile on said expressway at the rate of approximately forty-seven to fifty miles per hour just prior to colliding with the boy, and in attempting to avoid the collision slowed his car to about five miles per hour. The expressway in that area is a controlled access expressway, being divided in the center by a median strip or island, with one-way traffic on either side, and bicycles and pedestrians are forbidden from being upon or crossing the expressway. Upon seeing the minor plaintiff attempting to cross, the defendant locked his brakes and skidded until the boy was struck by the left front of the automobile.

By their fifteenth point appellants complain that the court erred in not submitting to the jury a negligence issue in connection with Issues Nos. 24 and 25. Special Issue No. 24 inquired if 'immediately prior to the accident the plaintiff, William Charles Gottschalk, attempted to cross the Express Way at a point other than within a marked or unmarked crosswalk at an intersection, thus presenting the issue of a violation of Section 78(a) of Article 6701d, Vernon's Ann.Civ.Stats. Special Issue No. 25 inquired if such action was a proximate cause of the accident.

It was upon a finding of contributory negligence in answering these two issues in the affirmative that the court denied any recovery to the minor plaintiff.

It is appellants' contention that it was a fact question for the jury to determine whether or not, on account of the age of the minor plaintiff he was negligent in attempting to cross the expressway at a point other than a marked or unmarked crosswalk at an intersection was negligence, taking into consideration his age, intelligence, experience and capacity, and that the court erred in holding that the minor plaintiff was guilty of negligence per se if he did so attempt to cross the expressway.

This presents a problem that has never been expressly before the Courts of this State, but has been passed on many times by the Courts of other States.

Generally speaking, the Courts in most jurisdictions, including this State, recognize that during the early stages of infancy, there is a conclusive presumption that the child is incapable of contributory negligence, but there is a conflict in decisions upon the age at which the presumption becomes ineffective. Gulf Production Co. v. Quisenberry, 128 Tex. 347, 97 S.W.2d 166; Missouri-Kansas-Texas R. Co. of Texas v. Sanderson, Tex.Civ.App., 174 S.W.2d 646; Sorrentino v. McNeill, Tex.Civ.App., 122 S.W.2d 723. There follows a period during which the presumption is rebuttable, depending upon the age, intelligence, experience and capacity of the child. This rule is universal insofar as contributory negligence generally is concerned. The question for determination here is whether or not the rule applies in cases involving the violation of a penal statute of ordinance.

While there are variations and exceptions to the rule, it may be said, generally, that a violation of a penal statute or ordinance is negligence per se. However, in cases not involving law violations by an infant, special consideration is given to a child's age, intelligence and capacity, in determining the question of his contributory negligence. The standard of care for the child is not to be judged by that of the reasonably prudent man, but by that care which a child of the same age, intelligence, capacity and experience would ordinarily be expected to exercise under the same or similar circumstances.

More precisely stated, the question is, which of the two rules is to give way to the other where there is a violation of law by an infant? Upon this subject the decisions are not in harmony. The minority rule is that the negligence per se rule is to prevail over the rule giving special consideration to the factor of infancy. In other words, where the child has passed the age where he is conclusively presumed incapable of negligence, then the child is amendable to the law just as an adult. The majority rule is that in cases involving a violation of a penal statute or ordinance by a child, special consideration should be given to his age, intelligence, experience and capacity, and that the question of his negligence is a question of fact to be determined by the jury, under proper instructions from the court. Graham v. Werfel, 229 Ala. 385, 157 So. 201; Scalf v. Eicher, 11 Cal.App.2d 44, 53 P.2d 368; Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 102 P.2d 422, 104 P.2d 26; Hackert v. Prescott, 165 Minn. 134, 205 N.W. 893; Peterson v. Miller, 182 Minn. 532, 235 N.W. 15; Hubred v. Wagner, 217 Minn. 129, 14 N.W.2d 115; Rule v. Claar Transfer & Storage Co., 102 Neb. 4, 165 N.W. 883; Locklin v. Fisher, 264 App.Div. 452, 36 N.Y.S.2d 162; McNamara v. Cohen, 184 Misc. 872, 55 N.Y.S.2d 600; Fightmaster v. Mode, 31 Ohio App. 273, 167 N.E. 407; Michalsky v. Gaertner, 53 Ohio App. 341, 5 N.E.2d 181; Kriens v. McMillan, 42 S.D. 285, 173 N.W. 731; Williams v. Black, 147 Tenn. 331, 247 S.W. 95; Von Saxe v. Barnett, 125 Wash. 639, 217 P. 62; Kuczko v. Prudential Oil Corp., 110 N.J.L. 111, 164 A. 308; Morby v. Rogers, 122 Utah 540, 252 P.2d 231; 174 A.L.R. 1170.

The only Texas case which, in our opinion, throws any light on the problem is Green v. Ligon, Tex.Civ.App., 190 S.W.2d 742, 746. In this case the court had before it the question of the negligence of a five-year-old child. An issue was submitted to the jury as to whether the minor plaintiff was negligent in attempting to cross a street at a place other than an intersection, obviously in violation of a city ordinance, which was answered in the negative. The defendant contended that notwithstanding that finding he was entitled to judgment, evidently on the ground that such action was negligence per se. The Court in overruling this contention said:

'Considering her age, intelligence, capacity and discretion, whether or not the degree of care shown to have been used by her for her own safety was sufficient and raised a fact issue for the jury.'

Having considered both the majority and minority rules, we believe that the majority rule is more sound, just and equitable, and that it would be unjust and inequitable to hold, as a matter of law, that a child of the age of William Charles Gottschalk is guilty of negligence per se in the violation of a penal statute. We believe, as do the holdings in the cases above cited, the issue of negligence is a fact question, taking into consideration the child's age, intelligence, experience and capacity, and should have been submitted to the jury. The court erred in failing to submit this issue of fact to the juyr.

Appellee contends that appellants have waived this point by their argument to the juyr to the effect that the minor plaintiff should not have been on the expressway. We do not agree with this contention. The court had in effect so instructed the juyr in submitting Issues 24 and 25 in the form of contributory negligence per se.

In view of the fact that the case must be reversed and remanded for another trial on account of the error hereinabove discussed, we feel that we should express our views on appellants' complaints with reference to the trial court's definition of proximate cause.

The trial court in his charge defined negligence, both as to the defendant and to the minor plaintiff, as follows:

'By the term 'negligence', as used in this charge, as applied to the defendant Gerald W. Rudes, is meant the failure to exercise such care as a person of ordinary prudence would have exercised under the same or similar circumstances.

'By the term 'negligence', as used in this charge, as applied to the plaintiff William Charles Gottschalk, is meant the failure to exercise such care as an ordinarily prudent child of his age, intelligence, experience and capacity would have exercised under the same or similar circumstances.'

By several points appellants complain that the court erred in the definition of proximate cause as applied to the minor plaintiff, and contend that in said definition the court should have instructed the jury that the injuyr, or some similar injury, should have been foreseen and anticipated by an ordinarily prudent child of plaintiff's age, interlligence, experience and capacity.

We note the trial court in his definition of negligence informed the jury, the degree of care required was that of the ordinarily prudent child of the age, intelligence, experience and capacity of the child involved.

We think the trial court erred in failing to instruct the jury in connection with its definition of proximate cause, that the injuyr or some similar injury should have been foreseen and anticipated by an ordinarily prudent child of the age, intelligence,...