Patterson v. Cushman, 360

CourtSupreme Court of Alaska (US)
Citation6 A.L.R.3d 421,394 P.2d 657
Docket NumberNo. 360,360
PartiesWilbern B. PATTERSON, as parent, next friend and natural guardian of Wilbern David Patterson, a minor, and Mary Beth Patterson, Appellants, v. Bill L. CUSHMAN and Helen Cushman, Appellees.
Decision Date03 August 1964

G. F. Boney, of Burr, Boney & Pease, Anchorage, for appellants.

Daniel A. Moore, Jr., of Plummer, Delaney & Wiles, Anchorage, for appellees.

Before NESBETT, C. J., and DIMOND and AREND, JJ.

AREND, Justice.

The plaintiff, Wilbern B. Patterson, brought this action as next friend on behalf of his minor son for injuries sustained by the latter as a consequence of the alleged negligent operation by the defendant, Helen Cushman, of an automobile maintained as a family car by herself and her husband, the other defendant. From a verdict and judgment of nonliability in favor of the defendant, the plaintiff prosecutes this appeal. Pertinent facts will be raised as they may be required for an understanding of each issue as it is being discussed in this opinion.

The first issue raised by the plaintiff concerns the trial court's refusal to strike the defendants' affirmative defense of contributory negligence and its subsequent treatment of the question of contributory negligence by children in its instructions to the jury. These instructions were quite lengthy and it would serve no useful purpose to set them forth verbatim in this opinion. In essence they informed the jury that neither negligence 1 nor contributory negligence were ever presumed; that in order to prevail upon their defense of contributory negligence the defendants would have to prove the same by a preponderance of the evidence; and that any evidence of negligence on the part of the injured child proximately contributing to the accident and the resulting injuries would bar recovery by him.

The plaintiff complains that the instructions laid so much stress upon contributory negligence that the minor was deprived of a fair trial; and he contends that the court should have stricken the defense of contributory negligence, or at least have instructed the jury, as requested by him, that a child under seven years of age cannot as a matter of law be guilty of negligence or contributory negligence. In other words, he is saying that Alaska should adopt what has become known as the Illinois rule, or the rule of conclusive presumption, that

'[A] child under seven years of age is incapable of such conduct as will constitute contributory negligence, and the court may so declare as a matter of law * * *.' 2

The reason behind the rule seems to be that 'a child under 7 years of age lacks the discretion, judgment and mental capacity to discern and appreciate circumstances of danger that threaten its safety.' 3

Arrayed against the proponents of the 'Illinois Rule' are those jurisdictions which have rejected the claim that some arbitrary age, such as four, five, six or seven, should be set below which a child must be conclusively presumed to be incapable of contributory negligence. 4 They recognize the presumption of incapacity but regard it as one which is rebuttable. Common sense is on their side for it dictates that there are other factors besides a child's age, e. g., judgment and experience, which must be considered in order to properly determine the child's capacity for contributory negligence. As stated by Judge Jayne in Hellstern v. Smelowitz: 5

'It seems entirely reasonable to suppose that the capacity of an infant to understand and to avoid dangers to which it is exposed in a given set of circumstances does not depend so much upon the chronological age of the infant as upon the infant's psychological development.'

'The ripening of the mental faculties of children in general must, we think, have been accelerated by the progressive enlargement of a child's scope of observations and experiences in our modern environment.'

'Under the so-called Illinois rule a boy who is one day under seven years of age may be guilty of the most flagrant contributory carelessness and yet evidence of his exceptional precocity and breadth of judgment and experience cannot be introduced to overcome the illusory presumption of babylike puerility.' 6

We reject the Illinois rule of conclusive presumption and adopt for Alaska the view that a child of less than seven years of age is rebuttably presumed to be incapable of contributory negligence. As to such a child there are two issues to be decided: (1) Whether the child has the capacity to be contributorily negligent, and (2) whether he was in fact contributorily negligent. These issues might well both be jury questions unless fair minded men in the exercise of reasonable judgment could not differ on the inferences to be drawn from the evidence. 7

With respect to the first issue mentioned in the preceding paragraph, the evidence in the instant case was such as to leave no doubt in a reasonable mind that the child was capable of some degree of care and of taking some precautions for his own safety. He knew the danger from automobiles and had been warned by his parents to watch out for vehicles and not to play in the streets. Under these circumstances the trial court would have had to rule as a matter of law that the child was capable of contributory negligence, 8 leaving for the jury only the issue of whether he was in fact contributorily negligent.

The trial court properly defined ordinary care as applicable to the child in this case by instructing the jury that

'A child is guilty of contributory negligence when he does something which an ordinary child of like age, intelligence, and experience would not do under the circumstances and conditions of a given case, or when he fails to take such precautions for his own safety as an ordinarily prudent child of like age, intelligence, and experience would take under the same circumstances and conditions. * * *'

During the course of the trial the plaintiff called as a witness one Donald Redman who testified that immediately preceding the accident he saw the child playing--'walking with one foot on the sidewalk or curb and one down off the curb into the street'--and then stumbling out into the street and falling into or coming into contact with the right front fender of the defendant's car. Redman was then shown an unsworn written statement made by him one week after the accident to Air Force Police officers investigating the accident 9 from which the following portion was read into the record:

'I saw Mrs. Cushmans [sic] [defendant's] car driving less than three feet from the curb where this little boy was walking 'up and down'. I saw her car strike the child. I do not know whether her right front bumper struck the child, or whether her right front fender struck the child, but I do know that I saw the right front corner of the car strike the boy * * *.'

The witness readily admitted making the statement and explained that in it he had failed to say how the boy got off the curb. On cross examination he identified an earlier written statement, given by him to the Air Force Police only one day after the accident, in which he related:

'I was following the car involved in accident, she [the defendant, Helen Cushman] was traveling about 15 MPH when this small boy stumbled and fell from curb into the car. The boy was walking with one foot on curb and other foot in gutter when he stumbled and fell into on coming traffic; the car had no way of avoiding the accident.'

The plaintiff tried twice but without success to get admitted into evidence as a prior inconsistent statement, the written statement made by the witness Redman six days after the accident. The defendants objected to the admission of the statement on the grounds that 'the witness is the best evidence,' that he 'testified as to what he actually observed' and that the statement did not add or detract from anything explained by his testimony. The plaintiff contends that the statement was admissible for purposes of impeachment and that it was error for the court to exclude it. We do not think so.

Redman admitted making the statements contained in the writing in question. That ended the inquiry. The material portions of the statement had been read to the jury, leaving no need for further proof on the subject. 10 The written statement would not have contradicted Redman any more than his admission had already done. 11

The third issue raised by the plaintiff is that the trial court erred in giving its instruction No. 7 which reads:

'In the present action certain testimony [of the witness Owczarski, who was apparently unavailable at the time of trial] had been read to you by way of deposition. 12

'You are instructed that you are not to discount this testimony for the sole reason that it comes to you in the form of a deposition. It is entitled to the same consideration, the same rebuttable presumption, that the witness speaks the truth, and the same judgment on your part with reference to its weight, as is the testimony of witnesses who have confronted you from the witness stand.'

The plaintiff argues that the instruction was erroneous because it overlooked the value attached to a witness' demeanor in court and in effect told the jury that they should give the same weight to evidence produced by deposition at they would to evidence coming from the witness testifying in open court. The defendants reply that this is not so, for the instruction merely directed the jurors that they must in weighing the testimony of a witness from the stand apply their individual judgment to the value of his testimony and demeanor and that they must apply no less amount of judgment to the testimony of a witness presented by way of deposition. We consider the defendants' interpretation of the instruction to be correct and one that any reasonably intelligent jury would have made. 13 This instruction coupled with the other instructions given by the court for judging the credibility of...

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