Stewart v. Jeffries

• Decision Date: 10 April 1974
• Docket Number: No. 1--973A161,1--973A161
• Citation: 159 Ind.App. 693,309 N.E.2d 443
• Parties: Wayne STEWART, Defendant-Appellant, v. Jonathan C. JEFFRIES b/n/f Harvey J. Jeffries, Plaintiff-Appellee. Motor Vehicle Casualty Company, Defendant-Appellee.
• Court: Indiana Appellate Court

Page 443

309 N.E.2d 443

159 Ind.App. 693

Wayne STEWART, Defendant-Appellant, v. Jonathan C. JEFFRIES b/n/f Harvey J. Jeffries, Plaintiff-Appellee Motor Vehicle Casualty Company, Defendant-Appellee.

No. 1--973A161.

Court of Appeals of Indiana, First District.

April 10, 1974.

Rehearing Denied May 15, 1974.

Kightlinger, Young, Gray & DeTrude, Indianapolis, Harding, Harding & Henthorn, Michael D. O'Neall, Foley, Berry & Tulley, Crawfordsville, for defendant-appellant.

James E. Ayers, Wernle, Ristine & Milligan, Crawfordsville, for plaintiff-appellee.

LOWDERMILK, Judge.

Plaintiff-appellee was awarded a judgment for a $30,000 for personal injuries suffered by him.

The court duly entered a judgment on the verdict which was followed by the timely filing of a motion to correct errors which was overruled and the case is now before us for review.

Defendant-appellant delivered a dump truck load of fill gravel to plaintiff-appellee's father's farm to fill one of two hog wallows. Appellant had been informed by appellee's father at the lumber yard, where the material was picked up, how to enter the farm to dump the materials. He was instructed to enter the farm through a gate just off the public highway, but instead he drove to the barn lot gate which was inadequate for the truck to pass through.

Appellee's older brother had ridden with appellant from the lumber yard to the farm and got out of the truck at the barn lot gate. At this point the brother told the appellee to accompany appellant and open the gate along the road. Appellee got on the running board of the truck and road out to the gate on the public highway, where he stepped from the running board and opened the gate. Appellant testified that before appellee opened the gate he had told the boy to leave the gate open, that he would be right back. The boy knew there were shoats in the field which might get out and he shut the gate. He also thought it would take the appellant longer to get down and get the gravel unloaded than appellant believed, and he also was under prior instructions from his father to point out to the appellant the one of two hog wallows which was to be filled. The older brother had already informed the appellant which hole was to be filled but the same was not within the knowledge of appellee.

Appellant drove very slowly after going through the gate and appellee, having been permitted to ride on the running board before and never having been told by the appellant not to climb thereon or to get off or stay off, thought it would be permissible to jump back on and ride to the place of the dumping. He pursued the slow moving truck to jump on the running board and tried to jump too far, missed it, fell under the truck and was run over by the rear wheels. He had never been told by the appellant he should not get on or off of the truck until it was stopped. Appellant did not testify that he told appellee to remain at the gate until he came back. The appellee could have reasonably believed the appellant was driving slowly in order that appellee could run and get on the running board of the truck to ride to the wallow where the truck was to be unloaded.

Appellee was a boy of normal mentality, but immature.

Appellant's truck had a mirror on the right side and he was turning to his right after passing through the gate but did not look in the mirror to see where the appellee was standing or what he was doing.

The first issue presented here is that the court erroneously submitted the question of contributory negligence to the jury because there was sufficient evidence to show that as a matter of law appellee was of sufficient age, understanding and experience to appreciate the danger and was guilty of contributory negligence and incurred the risk of his injury.

Appellee did admit on cross examination that he actually recognized the danger involved in jumping on the truck while it was moving and that he might get hurt.

To support this theory and contention appellant relies on the case of Dull v. Cleveland, C.C. & St. L. Ry. Co. (1898), 21 Ind.App. 571, 52 N.E. 1013, wherein plaintiff's decedent was a seven year old girl who stood on the railroad tracks waving at the passengers of a train passing in the opposite direction of that in which the defendant's train was traveling. The evidence in this case showed that the little girl lived in the vicinity of and was familiar with the tracks and the movements of trains and frequently crossed the track on errands without assistance, fully understood the dangers of standing on railroad tracks and was vigorous and intelligent for a child seven years of age. Notwithstanding the verdict for the plaintiff the trial court rendered judgment for the defendant and the Appellate Court affirmed, holding that the child was guilty of contributory negligence as a matter of law even though the jury, by interrogatories, found that the plaintiff had exercised the care expected of one her age.

The next case relied on by appellant is Indianapolis Traction and Terminal Company v. Croly (1911), 54 Ind.App. 566, 96 N.E. 973, wherein the plaintiff, an eleven year old girl, stepped in front of defendant's train. Judgment was rendered in her favor and reversed for the reason that the eleven year old girl was guilty of contributory negligence as a matter of law since the facts led to the conclusion that the child did possess sufficient understanding of the danger and clearly did not exercise reasonable care of a child of like age and experience.

In Kent v. Interstate Public Service Company (1932), 97 Ind.App. 13, 168 N.E. 465, plaintiff's decedent was a fourteen year old boy who was on the top of a bridge and contacted defendant's power line at nineteen feet and was killed. This court held as a matter of law that the child was sui juris and was responsible for his actions and that he was contributorily negligent as a matter of law.

The railroad cases relied on by appellant are different factually from the case at bar.

A careful review of the cases cited include the fact that the child was sui juris, realized the danger, and was properly chargeable with contributory negligence as a matter of law. In those cases reasonable men would be expected to come to but one conclusion which was that the child had the ability to realize and appreciate the danger and that the conduct was below that of an ordinary child of like age, intelligence and experience.

It is our opinion that reasonable men would not be expected to come to but one conclusion under the facts in the case at bar.

In the case of Hollowell v. Greenfield (1966), 142 Ind.App. 344, 216 N.E.2d 537, 542, 543, the appellee-plaintiff was an eleven year old boy who had three fingers torn off in the rollers of a driver at appellant's factory, and the court stated the rule on contributory negligence of a child of sui juris age, as follows:

'A jury properly instructed, can decide the issue of contributory negligence and without doubt the trial court has the power to rule on contributory negligence as a matter of law when the facts presented warrant such a ruling. Such a situation would require that the evidence would overwhelmingly establish and without grounds upon which reasonable men may differ that the child had the ability to realize and appreciate the danger and that the conduct was below that of an ordinary child of like age, intelligence and experience. Indianapolis Railways v. Williams (1944), 115 Ind.App. 383, 59 N.E.2d 586.

Applying these rules to the evidence produced at the trial of this cause we are of the opinion that there was conflicting evidence and therefore this case was properly submitted to the jury. The question of what is a reasonable standard of care for an eleven year old boy is so troublesome it belies the imagination. The question presents itself as thus: would an eleven year old boy climb a dangerous tree; would he operate a bicycle in heavy traffic disregarding the rules of traffic; would he play with a loaded firearm given to him by another; or more appropriately would be stuff 'comic books' through a dangerous piece of machinery in a place to which he was...