Indianapolis Traction & Terminal Co. v. Croly

• Decision Date: 28 June 1912
• Docket Number: No. 7,363.,7,363.
• Citation: 98 N.E. 1091,54 Ind.App. 566
• Parties: INDIANAPOLIS TRACTION & TERMINAL CO. v. CROLY.
• Court: Indiana Appellate Court

54 Ind.App. 566

98 N.E. 1091

INDIANAPOLIS TRACTION & TERMINAL CO.

v.CROLY.

No. 7,363.

Appellate Court of Indiana.

June 28, 1912.

On petition for rehearing. Petition overruled.

*1091For former opinion, see 96 N. E. 973.

PER CURIAM.

Petition for rehearing overruled.

FELT, J. (dissenting).

I am unable to agree with the prevailing view of my Associates that the petition for rehearing in this case be overruled. While entertaining this view, I am in accord with most that is said in the carefully prepared, logical, and able opinion; but my divergence of view strikes at a vital point of the case, and compels me to favor a rehearing. The opinion stated: “In our judgment the undisputed evidence shows that the plaintiff failed to use due care in view of her age and experience.” The ultimate question to be determined is the alleged contributory negligence of plaintiff. In approaching this question the opinion declares as a matter of law that this child 11 years of age contributed to its injury.

I cannot agree that “the undisputed evidence” warrants such conclusion, and hold that the question was for the jury to be determined from all the facts and circumstances of the case pertinent to the question, including plaintiff's age, capacity and experience. I concur in the view that plaintiff had reached the age when she is presumed in law to be capable of exercising some judgment and discretion, and was required to exercise such degree of care for her own safety as may reasonably and ordinarily be expected of children of like age, experience, *1092and capacity. In the case of C., C., C. & St. L. R. Co. v. Klee, 154 Ind. 430, on page 432, 56 N. E. 234, on page 235, it is said: “Regarding the conduct of a child between the age when he is conclusively presumed to be negligent and the age when he is conclusively presumed to be negligent under the same circumstances that would reveal an adult's negligence, the law is neutral. It lays down no conclusive presumption. Of such a child it cannot be said as a matter of law that his age shows him either incapable or capable of negligence. That question is to be determined as a fact in every such case.” In Baltimore, etc., R. Co. v. Hickman, 40 Ind. App. 315, on page 317, 81 N. E. 1086, on page 1087, this court said: “The standard of reasonable care applicable to an adult is not the standard of care required from a child ten years old. *** The measure of duty of care required from a child has frequently been stated, and whether in the given instance it was exercised is universally held to be a question for the jury.” This is unquestionably the general rule and the instances in which a court can declare a child, though sui juris, negligent as a matter of law, are rare. It can only be safely done where the evidence is clear and definite and no other reasonable inference or conclusion can be drawn except that of the child's negligence. There is evidence in this case tending to prove that plaintiff was 11 years old and lived with her mother at the corner of Roosevelt avenue and Lewis street; that her married sister lived in the same house, and had a child three years old, who just before and at the time of the accident was on the opposite side of the street near a lumber yard; that plaintiff went across the street to get this baby to return home, but failed; that plaintiff was in the roadway between the east curb and the east street car track; that from that point she looked both ways, up and down the track, and started back across the street in the direction of her home; that an east or out-bound street car passed her on the south track, and met an in-bound car on the north track about 75 feet from the place of the accident, running, without any warning of its approach, at the rate of 20 or 25 miles an hour; that the fender of the in-bound car struck plaintiff, and the car ran over her, and cut off one of her legs. There is other evidence contradictory of parts of the foregoing testimony, but we are not to weigh the evidence, and, if from the facts and circumstances shown by the evidence reasonable minds may draw different inferences or conclusions as to plaintiff's care, we cannot declare her guilty of contributory negligence as a matter of law. It is said in the opinion that “plaintiff walked across the South street car track about 15 feet in front of the Brightwood car, and stepped upon the north track about 4 feet in front of the Columbia street car.” While there is evidence tending to prove the foregoing statement, in my view of the testimony it is not the “uncontradicted evidence,” but, on the contrary, the evidence in the record not only makes possible other and different conclusions, but shows that such other conclusions are more probable and reasonable than the one stated in the opinion.

In considering this question, we may take the evidence most favorable to plaintiff, and draw all reasonable inferences. We find evidence at least tending to prove that she passed behind the outgoing car and stepped upon the north track when the car was considerably more than four feet from her, and that she was struck because of the speed of that car approaching without warning; that her view of the Columbia car was obstructed by the outgoing car for considerable distance. Furthermore, if the outgoing car passed the incoming car approximately 75 feet from the place of the accident, and the latter was running at the rate of 25 miles per hour, it would require but a fraction over two seconds of time for the car to reach the child after it passed the outgoing car. If the plaintiff was an adult, considering all the foregoing facts and circumstances, it would be carrying the application of the rule to its extreme limit to declare her guilty of contributory negligence as a matter of law. The fact that a child may have sufficient knowledge to charge it with notice of danger is by no means conclusive on the question of its capacity to avoid injury. The characteristics and natural tendencies of children are matters of common knowledge of which the courts may judicially know. Knowledge, age, and experience are to be considered where the child has attained to an age when it is capable of exercising some care for its own safety. These necessarily include the immature judgment and natural impulsiveness of the child. Angola R. & Power Co. v. Butz, 98 N. E. 818. It is said in the opinion: “If it appeared from the evidence that she used some care in this respect, it would be for the jury to say whether the care used was such as might be ordinarily expected from a child of her age and experience; but when it appears from the undisputed evidence that she used no care in this respect, and where no excuse is shown for a failure to use the care of which she was capable, the question is one of law for the court. *** True, she says that she looked up and down the street, and that she saw no car; but the physical facts remain that the car was there within a few feet of her...