Roberts v. Ring

• Decision Date: 27 June 1919
• Docket Number: No. 21187.,21187.
• Citation: Roberts v. Ring, 143 Minn. 151, 173 N.W. 437 (Minn. 1919)
• Parties: ROBERTS v. RING.
• Court: Minnesota Supreme Court

143 Minn. 151

173 N.W. 437

ROBERTS

v.RING.

No. 21187.

Supreme Court of Minnesota.

June 27, 1919.

Appeal from District Court, Steele County; Arthur B. Childress, Judge.

Action by G. R. Roberts, in behalf of his minor son, John B. Roberts, against Eugene P. Ring.The jury found for defendant, and plaintiff appeals.Reversed.

Syllabus by the Court

Defendant seventy-seven years old and with defective sight and hearing, was driving an automobile on a city street.He drove over a boy of seven.The street was crowded and the boy ran from behind another conveyance.Defendant was driving four or five miles an hour.He testified that he saw the boy at a distance of four or five feet from the car.On other occasions he is alleged to have said he did not see the boy at all.His automobile passed clear over the boy.Held, the evidence raised an issue of fact as to his negligence.

The question of the boy's contributory negligence was for the jury.

The court charged the jury that in determining the contributory negligence of the boy they should take his age into account and that in determining the negligence of defendantthey might take into account his age and infirmities.This plainly meant that such facts were to be considered extenuation in both cases.This was erroneous as to defendant.When one injures others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent normal man.J. A. & A. W. Sawyer, of Owatonna, for appellant.

Leach & Leach, of Owatonna, for respondent.

HALLAM, J.

Plaintiff brings this action on behalf of his minor son, John B. Roberts, seven years old, to recover damages for injury from collision with defendant's automobile.The jury found for defendant.Plaintiff appeals.Defendant assigns as error certain portions of the charge.Defendant contends that the charge was without error and further contends that as a matter of law, defendant was without negligence and that the boy was negligent.

[1] 1.Defendant was driving south on a much traveled street in Owatonna.He was seventy-seven years old.His sight and hearing were defective.A buggy was approaching him from the south.There were other conveyances on the street.The travel was practically blocked.The boy ran from behind the buggy across the street to the west and in front of defendant's automobile.There is evidence that he had been riding on the rear of the buggy.He himself testified that he was crossing the street.As he passed in front of defendant's automobile he was struck and injured.

The question of defendant's negligence was a proper one to be submitted to the jury.Defendant was driving from four to five miles an hour, not a negligent rate of speed.If he was negligent, it was in failing to keep a proper lookout and in failing to promptly stop his car.He testified that he saw the boy when he was four or five feet from the automobile.It is matter of common knowledge that an automobile traveling four or five miles an hour can be stopped within a very few feet, yet defendant knocked the boy down and his car passed clear over him.If defendant saw the boy, as he now claims, he was not alert in stopping his car.If he did not see him as he is alleged to have stated to others he was not keeping a sharp lookout in this crowded street.We are of the opinion that the evidence was such as to raise an issue of fact as to his negligence.

[2] 2.The question of the boy's negligence was likewise for the jury.Had a mature man acted as did this boy he might have been chargeable with negligence as a matter of law.But a boy of seven is not held to the same standard of care in selfprotection.In considering his contributory negligence the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity.Shearman & Redfield, Negligence, § 72a;Hannula v. Duluth & I. R. Ry. Co., 130 Minn. 3, 8, 153 N. W. 250.It would be different if he had caused injury to another.In such a...