Shipp v. Curtis
Decision Date | 04 June 1963 |
Docket Number | No. 18391.,18391. |
Citation | 318 F.2d 797 |
Parties | Gene SHIPP, a minor, by Raymond Shipp, his guardian ad litem, Appellant, v. "Bud" CURTIS, dba Bud Curtis' Thrifty-Way Market, Appellee. |
Court | U.S. Court of Appeals — Ninth Circuit |
Kizer, Gaiser, Stoeve, Layman & Powell, Benjamin H. Kizer and John G. Layman, Spokane, Wash., for appellant.
Randall, Danskin, Lundin & Allison, A. A. Lundin and Robert T. Carter, Spokane, Wash., for appellee.
Before JERTBERG and BROWNING, Circuit Judges, and JAMESON, District Judge.
This is an action based on diversity of citizenship, 28 U.S.C. § 1332. Plaintiff is a citizen and resident of the State of Idaho, and the defendant is a resident and citizen of the State of Washington. The matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000.00.
The plaintiff appeals from a judgment in favor of the defendant based upon a jury verdict in his favor, and the order of the District Court denying plaintiff's motion for judgment notwithstanding the verdict of the jury, or, in the alternative, for a new trial.
It is stated as an admission of fact in the pre-trial order
The complaint charged that the defendant failed to exercise reasonable care for the safety of plaintiff by not providing glass panels in the exit door of the market of sufficient strength and thickness, and that such negligence was the proximate cause of plaintiff's injuries and damages. Defendant, in his answer, denied negligence on his part and as an affirmative defense alleged negligence on the part of plaintiff which proximately contributed to the accident and the resultant injuries.
Plaintiff specifies as errors on this appeal the refusal of the District Court to instruct the jury that because of plaintiff's age he was conclusively presumed to be incapable of acting negligently, and the giving by the District Court of the following instructions on contributory negligence:
The exceptions or objections taken by the plaintiff before the District Judge are in the following form:
Since no issue has been raised on this appeal as to the sufficiency of the evidence produced by plaintiff to take the question of defendant's negligence to the jury, the only questions presented to us on this appeal are:
1) Is a child of six years of age conclusively presumed incapable of negligence?
2) If the District Court correctly instructed the jury that, in the case of a child of the age of six years, there is a prima facie presumption against his being capable of contributory negligence which presumption prevails unless overcome by evidence in the case, was there before the jury sufficient evidence for the jury to find that the prima facie presumption had been overcome?
Since Federal jurisdiction in this case is based upon diversity of citizenship, the law of the State of Washington governs. Rules of Decision Act, 28 U.S.C. § 1652; Summers v. Wallace Hospital, 276 F.2d 831 (9th Cir. 1960).
The latest expression by the Supreme Court of Washington which has been called to our attention dealing with questions under review on this appeal is Cox v. Hugo, 52 Wash.2d 815, 329 P.2d 467 (1958). In that case the injured child was five years and eight months of age. The question before the Supreme Court was whether the lower court had correctly decided that the child in question was conclusively presumed to be incapable of negligence. In the course of its opinion the Supreme Court states:
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