Grace v. Kumalaa

• Decision Date: 18 November 1963
• Docket Number: No. 4324,4324
• Citation: 386 P.2d 872,47 Haw. 281
• Court: Hawaii Supreme Court
• Parties: Robert GRACE, a Minor, by Antone R. Burgo, His Guardian ad Litem, and Lawrence R. Holt, Administrator of the Estate of Lorraine Grace Burgo, Deceased, v. Caroline KUMALAA.

Page 872

386 P.2d 872

47 Haw. 281

Robert GRACE, a Minor, by Antone R. Burgo, His Guardian ad Litem, and Lawrence R. Holt, Administrator of the Estate of Lorraine Grace Burgo, Deceased, v. Caroline KUMALAA.

No. 4324.

Supreme Court of Hawai'i.

Nov. 18, 1963.

Syllabus by the Court

1. Even if the operator of a school bus is a private carrier, and even if a private carrier is only subject to a duty of ordinary care in the usual case, when the passengers are children of tender years the standard of due care comprehends a high degree of caution and vigilance.

2. Negligence must be shown, and there must be a causal connection between the negligent act and the injury.

3. A child six years of age may be capable of contributory negligence.

4. A child is only required to use the care appropriate to his age, experience and mental capacity.

5. Evidence as to experience and mental capacity of a six-year-old child is necessary not only to the application of the standard of care required of a child but also, preliminarily, to show that the child was capable of some significant measure of care in the situation confronting him.

6. An instruction submitting to the jury in proper terms the question whether Plaintiff, a child of six years, was contributorily negligent should be given though not so framed as to present the preliminary issue of capability of the child where the evidence leads only to the conclusion that plaintiff was capable of some degree of care.

Frank D. Padgett, Alexander C. Marrack, Robertson, Castle & Anthony, Honolulu, for appellant.

David N. Ingman, Honolulu, for respondents.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS and MIZUHA, JJ.

LEWIS, Justice.

Plaintiff, Robert Grace, a first grader of the age of six years and eleven months, was injured when he fell as he was leaving defendant's station wagon in which he had ridden to school. He cut his right hand on a glass jar he was carrying. Defendant was held liable and on appeal contends, first, that there was insufficient evidence of negligence on her part to go to the jury, and second, that the court erred in instructing the jury that plaintiff, being under seven, was incapable of contributory negligence, and further erred in refusing to give the instruction proffered by defendant on this matter.

Robert had been riding with defendant since his family moved to Maili, Oahu, in May, 1960. He rode with her the balance of that school year, and resumed at the start of the new school year in September, 1960. The accident occurred February 7, 1961. Defendant was in the business of driving Maili children back and forth to school, making four round trips a day, three to and from the elementary school and one to and from high school. She registered the children at the beginning of the year, and charged one dollar per week for each child, subject to refund if the child was unable to attend school at the rate of twenty cents per day.

Defendant owned and used only the one station wagon, ¹ having three seats. She placed four children on the back seat, five on the middle seat (which could be fully occupied only when a jump seat was lowered after the back was filled), and two in the front. There was testimony that a twelfth child was standing on the day of the accident, but we deem this immaterial.

Defendant regularly picked up Robert, his cousin Ellsworth, Beatrice Glover, and two other children at the corner of Robert's house, where they boarded the right-hand side of the vehicle. On the day of the accident Robert, with the knowledge of his mother, had with him two covered glass jars containing caterpillars. It is undisputed that at the time of boarding Ellsworth had one of the jars. After seating himself in the middle seat next to Ellsworth, Robert repossessed himself of this jar and passed both around among the children. He was carrying both jars as he left the car. He tripped on a small rubber mat on the right-hand side of the car, fell out of the car onto the ground, and cut his right hand on broken pieces of the jar he was carrying in that hand.

There was testimony of Beatrice Glover, an older child, that Robert carried one jar aboard in a bag taken from a garbage can, while Ellsworth held the other at his side away from defendant. Robert denied that he used a bag or tried to hide the jars. Defendant testified she was looking at the children as they got in the car, watching for dangerous objects and saw none, that she would not permit children to bring into the car sticks, umbrellas, scissors, bottles, or 'things like that,' that she did permit paper bags--'I believe it is their lunch,' that if she had seen the jars she would not have allowed them to be brought into the car or would have taken them away from the children and put them by her feet. Beatrice Glover corroborated that defendant had warned the children against, and had stopped them from, taking bottles in the car, and further testified that she reminded Robert of this on the occasion in question as they were waiting to be picked up, after which as she testified he procured a bag. On the other hand, it was her testimony that defendant was not watching the children as they boarded but was looking ahead.

Defendant testified that on the registration form there was set out her 'rule' against bringing bottles or anything harmful or unsafe into the car. However, she had destroyed the registration forms for the year in question. Robert's mother testified that 'several times' before the accident he had taken bottles to school in defendant's car. She did not remember any statement in the registration form about bottles and dangerous objects. The court limited consideration of the registration form to the mother's own case, she being herself a plaintiff seeking (and obtaining) recovery of the medical bills. ² Whether the ruling limiting this evidence to the mother's case was correct is not before us.

Defendant was not watching the children as they left the car. In order to be sure the children exited from the right-hand side and not into the street she was leaning over to hold shut the door on the left-hand side. She did not know of the accident until one of the children told her, at which time she got out of the car to help Robert. Asked if she shouldn't have been observing the children instead of looking the other way she testified: 'I look at them when they get in the car.' She conceded that she could have held the left-hand door in such a way as to also observe the children. She further testified that she would have prevented Robert from attempting to alight with jars in both hands if she had seen what he was doing.

In considering the contention that a verdict should have been directed for defendant we necessarily consider the applicable standard of care. Over objection of defendant that she was a private carrier and not subject to the common carrier rule requiring the 'highest degree of care,' the court instructed the jury that 'the operator of a carrier for hire such as the Defendant in the case, owes the highest degree of care to passengers, rather than the usual standard of ordinary care * * *.' But defendant has not specified this instruction as error and in her brief has conceded that 'a carrier has the highest duty of care,' making no distinction between private and common carriers. We shall approach the question accordingly, without making any ruling as to whether there is a difference in the degree of care required of private carriers as compared with common carriers, and without passing on defendant's status as a private or common carrier. Moreover, even if defendant was a private carrier, and even if a private carrier is only subject to a duty of ordinary care in the usual case, ³ 'children of tender years are entitled to a degree of care from others proportioned to their inability to foresee and avoid the perils which they may encounter * * *.' Cartwright v. Graves, 182 Tenn. 114, 184 S.W.2d 373, 378, quoting from Townsley v. Yellow Cab Co., 145 Tenn. 91, 237 S.W. 58; Shannon v. Central-Gaither Union School Dist., 133 Cal.App. 124, 23 P.2d 769, 771; 38 Am.Jur., Negligence, § 40. As held in Hunter v. Boyd, 203 S.C. 518, 28 S.E.2d 412, 414, 'in view of the fact that the passengers transported on a bus of this character are children, many of whom [are] of very tender years, it is manifest that the standard of due care would comprehend a high degree of caution and vigilance with respect to such a child.'

We hold that there was no reversible error in the court's refusal to direct a verdict for defendant. True, negligence must be shown, and there must be a causal connection between the negligent act and the injury. Mitchell v. Branch, 45 Haw. 128, 131, 363 P.2d 969, 973; Dzurik v. Tamura, 44 Haw. 327, 329, 359 P.2d 164, 165; Fuller v. Honolulu Rapid Transit & Land Co., 16 Haw. 1, 9-10. There was no evidence that the keeping of the rubber mat in the car was in itself negligent. Cf., Finlayson v. Bryan, 56 N.D. 407, 217 N.W. 662; Graves v. Roman, 113 Cal.App.2d 584, 248 P.2d 508. So far as appears, the mat had been in use prior to the accident and was not a new feature in defendant's car. However, the jury could find that the carrying of the two jars, one in each hand (the one in the right hand either in a bag or grasped directly, depending on the view taken by the jury of the evidence) disturbed Robert's balance as he left his seat and approached the door in the confined space of the station wagon, causing him to fall. The evidence further raised a question for the jury as to whether defendant properly supervised the young children, of whom Robert was one, while they were in her care.

This brings us to the remaining specifications of error, having to do with the instructions. The jury was instructed, over objection, as follows:

'You are instructed that under the law children under seven are incapable of contributory negligence and therefore you must find in favor of ...