Grant v. Mays
| Decision Date | 14 January 1963 |
| Docket Number | No. 5531,5531 |
| Citation | 204 Va. 41,129 S.E.2d 10 |
| Court | Virginia Supreme Court |
| Parties | WILLIAM ALEX GRANT, AN INFANT, ETC. v. CARRINGTON EDWARD MAYS, AN INFANT, ETC. Record |
E. Marshall Frost (Caskie, Frost, Davidson & Watts, on brief), for the plaintiff in error.
Robert C. goad, for the defendant in error.
JUDGE: I'ANSON
Carrington Edward Mays, an infant, 14 years of age, brought this action by his mother and next friend to recover damages for personal injuries sustained when he was struck while riding his bicycle by an automobile operated by the defendant, William Alex Grant, an infant, 19 years of age. A jury trial resulted in a verdict for the plaintiff in the sum of $8,000 on which the trial court entered final judgment and the defendant is here on a writ of error.
The accident occurred on October 16, 1960, about 10 A.M., on State route 610, in the village of New Glasgow in Amherst county. The road was 15 feet wide, its surface was black top, and the speed limit was 55 miles per hour. The plaintiff lived about 300 feet from the east side of the highway at the end of a private driveway. Opposite the entrance of the driveway, and on the west side of the road, there were several mailboxes. The road extended generally in a northsouth direction and was reasonably straight for one-tenth of a mile north of the plaintiff's driveway. At the north end of this straight stretch there was a sharp curve.
The evidence is in hopeless conflict as to how the accident occurred.
The plaintiff testified that he rode his bicycle out of his driveway, turned north on route 610 to go to a neighbor's house, and had traveled about 250 feet when he noticed that the neighbor's automobile was not in his yard. He then turned around and proceeded south on the west side of the road. When he had gotten almost back to the mailboxes opposite his driveway he heard a car coming around the sharp curve behind him, making a lot of noise. He looked back, saw the car approaching fast, and pulled his bicycle to the right. He got the front wheel of the bicycle off the road and the rear wheel to the edge of the hard surface when it was hit from the rear by the defendant's automobile, and he was thrown to the ground and injured.
The testimony of the mother and brother of the plaintiff was substantially the same as his, except the brother stated that the defendant's automobile sounded as if it was going 60 to 70 miles an hour.
The defendant testified that while he was traveling south on the road at about 35 to 40 miles per hour, the plaintiff rode his bicycle out of the driveway directly in front of his automobile when he was about a car's length away from him, and he pulled to the left side of the road and applied his brakes in an effort to avoid striking him. After applying his brakes his car slid sideways and hit the rear wheel of the bicycle. The car continued to slide on the road for a short distance and then it went down a ditch and into the bank of the yard on his left side of the highway.
The testimony of two disinterested neighbors was substantially the same as that related by the defendant.
The testimony of the investigating officer reveals that the defendant's automobile had plowed into the bank of a yard on the east side of the road, south of plaintiff's driveway, and its entire front end was badly damaged. There were no marks on the automobile showing the impact with the bicycle. The bicycle was found about eight feet to the north and eight feet west of the mailboxes, and only its rear wheel frame was damaged. The automobile made skid marks which started 44 feet north of where the plaintiff's bicycle was found and from there extended 76 feet to where it came to rest, for a total distance of 120 feet. These marks extended down the middle of the 15-foot pavement almost to the driveway and then veered to the left toward the bank on the east side of the road.
There was evidence that the plaintiff was not a normal, healthy child. His mother testified that he finished the third grade of school when he was 10 years of age and that he made good grades, but he had refused to stay in school after the third grade. Dr. G. B. Arnold, Superintendent of Lynchburg State Colony, an institution for feebleminded persons, examined the plaintiff at the request of the defendant on March 21, 1961, and testified that this examination revealed that the plaintiff was 5 feet 1 inch tall and weighed 91 pounds. He was very pale, under-weight, and had bad teeth, enlarged tonsils, defective vision, and possible diabetes. Dr. Arnold thought the plaintiff was mentally defective and said he would classify him in the upper moron group.
The sole question we need to consider on this appeal is whether the court erred in granting plaintiff's instruction No. 7, which reads as follows:
'The Court instructs the jury that the law does not require that a child shall exercise the same degree of care and caution as a person of mature years, but only such care and caution as a person of his age, discretion and intelligence would naturally and ordinarily use; and if the infant plaintiff exercised such care and caution as might have been reasonably expected from a child of his age, discretion and intelligence under the circumstances of this case, and he was injured in consequence of the negligence of the defendant, then the defendant is liable, although the infant plaintiff may have contributed to the injury. ' (Italics supplied.)
The defendant concedes that there was evidence from which the jury could conclude that he was guilty of negligence, but says that when a child is over 14 years of age the principle of contributory negligence applies the same as it does in the case of an adult; that the standard of care the plaintiff was required to exercise for his safety was that of reasonable care; and that the issue of plaintiff's contributory negligence was improperly removed from the jury by the instruction.
In Virginia, a child under 7 years of age is conclusively presumed to be incapable of contributory negligence....
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