Joseph v. Peterson

• Decision Date: 07 April 1959
• Citation: 9 O.O.2d 498,108 Ohio App. 519,160 N.E.2d 420
• Parties: , 81 Ohio Law Abs. 1 Patricia JOSEPH, an infant, by her father and next friend, George P. Joseph, Plaintiff-Appellant, v. Willis PETERSON and Phyllis Peterson, Defendants-Appellees.
• Court: Ohio Court of Appeals

Page 519

108 Ohio App. 519

160 N.E.2d 420, 81 Ohio Law Abs. 1

Patricia JOSEPH, an infant, by her father and next friend, George P. Joseph, Plaintiff-Appellant, v. Willis PETERSON and Phyllis Peterson, Defendants-Appellees.

Court of Appeals of Ohio, Franklin County.

April 7, 1959.

Herbert, Tuttle, Applegate & Britt, Columbus, Paul M. Herbert, Columbus, of counsel, for plaintiff-appellant.

William J. Lohr, Columbus, for defendants-appellees.

DUFFY, Judge.

This is an appeal on questions of law from a judgment entered in the Franklin County Common Pleas Court, wherein the trial court directed the jury to render a verdict for the defendants-appellees.

Plaintiff-appellant, a minor four years of age, by her father and next friend, sued the defendants-appellees, the parents of a minor eight years of age, for injuries received by her on May 17, 1955, when a metal-tipped arrow, shot by the eight-year-old son of the defendants-appellees, struck her in the right eye, necessitating a later removal of the eye. At the conclusion of plaintiff-appellant's case in the trial court, the appellees moved for a directed verdict, which was sustained by the court.

The trial court construed the evidence presented most favorably to the plaintiff and came to the conclusion that there was no evidence presented showing negligence on the part of the defendant parents, as evidence presented did not indicate that the child was incompetent or unskilled in the use of the bow and arrow, which the court held was not a dangerous instrumentality as a matter of law. In that finding the court felt compelled to follow White v. Page, decided by the Court of Appeals of Franklin County, Ohio, in 1950, and reported in 105 N.E.2d 652. The trial court did not feel that there was any evidence indicating a course of conduct on the part of defendants' son which would give them warning that such an unfortunate incident as this would probably occur, although the court did recognize that when dealing with children anything is possible, but since the law deals only with probabilities, there were not sufficient grounds to present a case to the jury.

The plaintiff-appellant felt that there was evidence presented which the trial court should have submitted to the jury for decision, as plaintiff's parents testified that they had previously sent the defendants' son home when he brought the bow and arrow to their yard; and the defendant, Mr. Peterson, testified that he had taken the bow and arrow away from the boy and had told the boy to leave the bow and arrow alone; but in spite of this prohibition, the mother gave the boy permission to use the bow and arrow without supervising his activities. The father's prohibition of the use of the bow...