Mundy v. Johnson

• Decision Date: 19 July 1962
• Docket Number: No. 9041,9041
• Parties: Vern MUNDY and Eunice Mundy, husband and wife, Plaintiffs-Appellants, v. Ernest JOHNSON and Mabel H. Johnson, husband and wife, Defendants-Respondents.
• Court: Idaho Supreme Court

Page 755

373 P.2d 755

84 Idaho 438

Vern MUNDY and Eunice Mundy, husband and wife, Plaintiffs-Appellants, v. Ernest JOHNSON and Mabel H. Johnson, husband and wife, Defendants-Respondents.

No. 9041.

Supreme Court of Idaho.

July 19, 1962.

Cox, Ware, Stellmon & O'Connell, Lewiston, for appellants.

Clements & Clements, Lewison, for respondents.

TAYLOR, Justice.

June 9, 1960, at about noon, on Thain road in Lewiston Orchards, Paula Mundy, daughter of plaintiffs (appellants) was struck and killed by an automobile owned by defendants (respondents) and driven by defendant Mabel H. Johnson. Thain road is a four-lane highway running in a generally north-south direction, bisecting Lewiston Orchards.

Mrs. Johnson was traveling south in the right-hand of the two lanes provided for south bound traffic at a speecd of from 20 to 25 miles per hour. The permissible speed was 35 miles per hour. As she approached an intersection there was on the east side of Thain road to her left a Nazarene church, where a group of children had just been released from Bible school, and there were a number of children on the church ground and on the adjacent sidewalk, moving south. A little farther south and on the west side of Thain road, was a service station. There were two signs near the sidewalk adjacent to the north edge of the service station property, and a parked car on the service station lot. These objects were in such position as to obstruct the view, of certain portions of the service station area, of a driver moving south on Thain road. As the car approached the service station, the child ran out from the service station lot into the street, where she was struck by the car. There was no witness to the impact. Mrs. Johnson testified she saw no children on her right on the west side of the street, nor at the service station, and that she did not see the deceased until she was running in the street; that the child suddenly appeared from the area where the parked car and sign were located. On the date of the accident Paula Mundy lacked 17 days of being five years old.

Upon trial the jury returned a verdict for defendants, upon which judgment was entered and plaintiffs brought this appeal.

Plaintiffs assign as error the refusal of the trial court to strike from the answer the allegation of contributory negligence; the refusal of the court to charge the jury that a child of five years is incapable of contributory negligence; and in submitting to the jury the issues as to whether the child was capable of negligence; and as to whether or not she was contributorially negligent. These questions were submitted to the jury by instruction no. 6, as follows:

'You are instructed that a child of the age of Paula Mundy is ordinarily presumed by law to be incapable of negligence. However, though age is an important factor to be considered in determining whether or not a child is capable of exercising care on its own part, it is not the only factor to be considered. The capacity, discretion, knowledge and experience of the particular child are predominant elements in determining the question of the child's negligence, and intelligence rather than age is the controlling test in determining the degree of care required of a child to avoid personal injury. In other words, the child is chargeable with that degree of care reasonably proportionate to a child his age and capacity.

'Whether or not Paula Mundy was contributorily negligent as in these instructions defined, must, by you be determined from all of the particular facts and circumstances surrounding the accident in question, and the child's knowledge, capacity, experience, maturity and intelligence.'

There was evidence that Paula was a bright, 'very smart,' and alert child, more so 'than the average child of her age;' that she was attentive to instruction; that she had been warned by her parents of the danger involved in crossing streets; and had been observed exercising caution in so doing; that she with her sister and brother had walked to and from the school, about a mile from her home, several times prior to the accident; and that she had been warned by her teacher at the Bible school, the morning of the accident, not to go into the street.

The submission of the issue of contributory negligence was not error. The age at which a child reaches such maturity as to be chargeable with contributory negligence is an issue upon which there has been great divergence of opinion among the various jurisdictions. Illinois early held that a child under the age of 7 was conclusively presumed to be incapable of negligence; while Massachusetts held that as the children under 7 the issue was one for the jury under proper instructions.

In Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1, the Minnesota court held that the question of whether a child 6 years of age was capable of negligence was for the jury. Concerning the two rules, the court said:

'Under a proper instruction the Massachusetts rule is the more sound and the one most likely to insure just result. It does not cast upon the general public any and all risks that may be created by the carelessness of a child. Still it does not go so far as to hold a child to a degree of care not commensurated with its age and experience.

* * * Jurors, by virtue of their office, are competent to judge whether or not a child has exercised a degree of care commensurate with its age, capacity, and understanding. The Illinois rule has no basis in sound reason or logic. It is based upon an outworn historical rule of criminal law which refused to acknowledge any capacity on the part of any child under seven years of age to distinguish between right and wrong.' 107 A.L.R. at page 4.

The general rule as to the responsibility of a child for contributory negligence is set forth by the annotator in 107 A.L.R. 7, towit:

'It is a well-settled general rule that an infant, at least until he has reached the later years of infancy, is not bound to exercise the care required of an adult, and that the standard by which to measure his conduct, as regards the question of contributory negligence, is that ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience, under the same of similar circumstances.'

and, on page 8:

'The converse of the above proposition is equally true; namely, that infancy will not preclude the defense of contributory negligence, if the injured infant failed to exercise the care ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience, under the same or similar circumstances.'

The Supreme Court of the United States said:

"* * * Of a child of three years of age less caution would be required than one of seven; and of a child of seven less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.' Washington & G. R. Co. v. Gladmon (1872) 15 Wall. (U.S.) 401, 21 L.Ed. 114.' 107 A.L.R. Anno. at page 7.

On pages 168 to 172 of the foregoing annotation, the annotator has collected cases from various jurisdictions holding that the question of the capacity of very young children (5, 6 and 7 years) is one of fact for the jury. In a supplemental annotation, 174 A.L.R. 1123 to 1125, subsequent cases involving 5-year old children are collected.

In Asumendi v. Ferguson, 57 Idaho 450, 65 P.2d 713, this court held it was proper to instruct the jury that a child of 2 years and 3 months was incapable of contributory negligence, although, in that case the negligence of the child was not urged or relied upon as a defense.

In Anderson v. Great Northern Ry. Co., 15 Idaho 513, at 527, 99 P. 91, this court tacitly approved an instruction containing the following:

"* * * A child of four years is presumed to be incapable of undertaking ordinarily the dangers and perils incident to the walking upon the railroad track. Children of very tender age are conclusively presumed to be incapable of exercising care and judgment to avert injury from themselves, and, as a matter of law, contributory negligence is not imputable to them."

In Bennett v. Deaton, 57 Idaho 752, 68 P.2d 895, it was held that contributory negligence of a child (record indicates 13 years of age) was for the jury.

In Laidlaw v. Barker, 78 Idaho 67, 297 P.2d 287, a boy of 13 was held contributorily negligent as a matter of law; and in Shirts v. Shultz, 76 Idaho 463, 285 P.2d 479, the same ruling was made concerning the conduct of a boy 16 years of age.

The authorities are in general agreement that age alone is not the determining factor; other elements must be considered.

'* * * it is generally held that, although age is an important factor to be considered in determining whether a child is capable of exercising any care, it is not the only factor to be considered. Hence, whether a child has such capacity is to be determined in each case by considering not only its age, but also all other factors bearing on its capacity, such as its intelligence, experience, such as, under particular circumstances, its discretion, previous training, maturity, alertness, and the nature of the danger encountered. Furthermore, in the absence of evidence showing a lack of the normal capacity of one of its years to exercise care, a child may be of such an age as to be held capable of exercising care for its own safety, so as to be chargeable with contributory negligence. Thus, it has been held that a child under seven may be charged with contributory negligence, and that a child may be guilty of contributory negligence, although at the time of its injury it was between six and seven years old, between five and six years old, less than six years of age, and between four and five years old.' 65 C.J.S. Negligence § 145, pp. 786, 787.

'The care which a child is bound to exercise to avoid the charge of negligence...