Rudes v. Gottschalk

• Decision Date: 20 May 1959
• Docket Number: No. A-7012,A-7012
• Parties: Gerald W. RUDES, Petitioner, v. Bernard A. GOTTSCHALK, Individually and as Next Friend of William Charles Gottschalk, Respondents. Bernard A. GOTTSCHALK, Individually and as Next Friend of William Charles Gottschalk, a Minor, Petitioners, v. Gerald W. RUDES, Respondent.
• Court: Texas Supreme Court

Page 201

324 S.W.2d 201

159 Tex. 552

Gerald W. RUDES, Petitioner, v. Bernard A. GOTTSCHALK, Individually and as Next Friend of

William Charles Gottschalk, Respondents.

Bernard A. GOTTSCHALK, Individually and as Next Friend of

William Charles Gottschalk, a Minor, Petitioners, v. Gerald W. RUDES, Respondent.

No. A-7012.

Supreme Court of Texas.

May 20, 1959.

Carl Wright Johnson and Alfred W. Offer, San Antonio, for petitioner.

Lieck & Lieck, San Antonio, for respondents.

NORVELL, Justice.

After having considered the motion for rehearing filed herein by Gerald W. Rudes, we remain of the opinion that the judgment of the Court of Civil Appeals reversing the judgment of the trial court and remanding this cause for another trial should be affirmed. Such motion for rehearing is accordingly overruled. As certain changes in and additions to the original opinion have been made, that opinion is withdrawn and the following is filed in lieu thereof as the opinion of the Court:

Two questions are before us. One relates to the doctrine of negligence per se as applied to minors. The other concerns the proper method and form of submitting the element of 'foreseeability' in the proximate cause issue when it is alleged that a minor has been contributorily negligent.

The trial court upon jury findings denied a recovery to plaintiffs upon the theory that William Charles Gottschalk, a boy eight years of age, was guilty of negligence per se. The Court of Civil Appeals reversed this judgment and remanded the case. Upon rehearing, however, a difference of opinion developed between the justices as to the proper method of submitting the proximate cause issue, 315 S.W.2d 361. We granted writ of error upon Rudes' contention that the judgment of the trial court should be affirmed upon the theory of negligence per se, and also upon the Gottschalk contention that the majority of the Court of Civil Appeals erred in its instructions relating to the proximate cause issue. As the parties occupy a dual position here, their trial court designations will be employed.

The minor plaintiff, William Charles Gottschalk, was struck by an automobile driven by Rudes while attempting to push his bicycle across a controlled access expressway in San Antonio, Texas. The jury found that, 'immediately prior to the accident the plaintiff, William Charles Gottschalk, attempted to cross the Expressway at a point other than within a marked or unmarked crosswalk at an intersection' (Issue No. 24) ¹ and that 'such act * * * was a proximate cause of the accident.' (Issue No. 25.)

Although the court had defined negligence as applied to William Charles Gottschalk as meaning 'the failure to exercise such care as an ordinarily prudent child of his age, intelligence, experience and capacity would have exercised under the same or similar circumstances,' no negligence question was submitted in connection with Special Issue No. 24, but the child was held to the standard of care applicable to an adult.

It is well settled that where common-law negligence as distinguished from negligence per se is involved, the minor is judged by the standard of a child and not that of an adult. Dallas Ry. & Terminal Co. v. Rogers, 147 Tex. 617, 218 S.W.2d 456; Texas & Pacific Ry. Co. v. Crump, 102 Tex. 250, 115 S.W.26; Texas & Pacific Ry. Co. v. Phillips, 91 Tex. 278, 42 S.W. 852; Missouri, Kansas & Texas Ry. Co. v. Rodgers, 89 Tex. 675, 36 S.W. 243; Gulf, Colorado & Santa Fe Ry. Co. v. McWhirter, 77 Tex. 356, 14 S.W.26; Evansich v. Gulf, Colorado & Sante Fe Ry. Co., 57 Tex. 123; Government Employees Ins. Co. v. Davis, 5 Cir., 266 F.2d 760; Annotations, 107 A.L.R. 4 and 174 A.L.R. 1082; Restatement of the Law of Torts (Negligence) § 283, Comment (e) relating to children.

While defendant does not dispute the rule above set forth, he insists that a different rule applies to cases of negligence per se. Here the legislative regulation governing the crossing of highways in places other than crosswalks was obviously intended to guard against a general class of harm which included the unfortunate occurrence disclosed by the record before us and was undoubtedly designed for the protection of motorists using the expressway as well as those crossing the same. 38 Am.Jur. 834, Negligence §§ 163, 165.

Fundamentally, however, the application of proscriptions contained in criminal statutes as standards for determining tort liability stems from the judicial action of civil courts. The statute here does not expressly provide for the fixing of civil liability in a negligence action. Actions expressly provided for by statute are to be distinguished from actions based upon the doctrine of negligence per se. In the latter type of action, the civil courts may and often do consider acts or omissions as negligent because of criminal regulations against them, although such acts or omissions would not be considered negligent under the ordinarily prudent man test. In the usual negligence per se case, however, we are concerned with alleged conduct which would be considered substandard even in the absence of statute. We adopt the statutory test rather than that of the ordinarily prudent man as the more accurate one to determine negligence because the Legislature, by reason of its organization and investigating processes, is generally in a better position to establish such tests than are the judicial tribunals. But this does not mean that the criminal statute is always accepted as a test of negligence by the civil courts under all circumstances. We have applied tests and standards taken from criminal statutes, even though such provisions are too indefinite for criminal proscriptions, Gann v. Keith, 151 Tex. 626, 253 S.W.2d 413, and even when the statute may be wholly invalid as a criminal regulation because of a failure to comply with a procedural condition precedent. Clinkscales v. Carver, 22 Cal.2d 72, 136 P.2d 777.

As the power of adopting or rejecting standards rests with the civil courts, we may accept or reject the criminal statute or use such part thereof as may be deemed appropriate for our purposes. Phoenix Refining Co. v. Powell, Tex.Civ.App., 251 S.W.2d 892, wr. ref. n. r. e.; Clarence Morris, 'The Role of Criminal Statutes in Negligence Actions,' 49 Columbia Law Review 21; Morris, 'Studies in the Law of Torts' p. 141. We have applied standards set forth in criminal statutes even to those persons who are expressly excepted from criminal responsibility thereunder. See Article 30, Vernon's Tex.Penal Code, and compare Sorrentino v. McNeill, Tex.Civ.App., 122 S.W.2d 723, wr. ref. And even while accepting a statutory standard of negligence in lieu of that of the ordinarily prudent man, we still retain the test of foreseeability of harm before liability is imposed under the doctrine of negligence per se. Mundy v. Pirie-Slaughter Motor Co., 146 Tex. 314, 206 S.W.2d 587.

We agree with the Court of Civil Appeals in holding that the conduct of a child is not to be judged by the standard of an adult simply because statutory negligence (negligence per se) is involved rather than common-law negligence. This holding is undoubtedly in accord with the overwhelming weight of authority in the United States. Annotation 174 A.L.R. 1170. See authorities cited by the Court of Civil Appeals, 315 S.W.2d 364. As indicated in the A.L.R. annotation (174 A.L.R. 1181) some courts apply the general rule concerning a child's standard of care while others inquire by interrogatory or instruction into the child's capacity to understand and comply with the statute. For example, in McNamara v. Cohen, 184 Misc. 872, 55 N.Y.S.2d 600, 603, the Supreme Court of New York held that, 'The jury should have been instructed to determine whether or not plaintiff, having in mind his age, intelligence and experience, had sufficient mental and physical capacity to be able to comply with the statute.' The general rule of a child's standard of care is, however, more compatible with the Texas practice and would be less likely to confuse a jury in a case submitted upon special...