Swindell v. Hellkamp

• Decision Date: 25 November 1970
• Docket Number: No. 39609,39609
• Parties: Linda Sue SWINDELL, a minor, by and through her mother and next friend, Nadine Swindell, and Nadine Swindell, individually, Petitioners, v. Donald G. HELLKAMP and Jesse Ramirez, a minor, Respondents.
• Court: Florida Supreme Court

Page 708

242 So.2d 708

Linda Sue SWINDELL, a minor, by and through her mother and next friend, Nadine Swindell, and Nadine Swindell, individually, Petitioners, v. Donald G. HELLKAMP and Jesse Ramirez, a minor, Respondents.

No. 39609.

Supreme Court of Florida.

Nov. 25, 1970.

Rehearing Denied Jan. 26, 1971.

John T. Carlon, Jr., of Coker & Carlon, Fort Lauderdale, for petitioners.

Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for respondents.

ROBERTS, Justice.

This cause is before the court on writ of certiorari following certification under Florida Appellate Rule 4.5, subd. c(6), 32 F.S.A. by the District Court of Appeal for the Fourth District as presenting a question of great public interest.

The minor plaintiff, Linda Sue Swindell, was struck and injured on September 30, 1966 by an automobile that was driven by the seventeen year old defendant, Jesse Colberto Ramirez. The evidence indicated that Linda ran across the street after having emerged from behind a row of shrubs and was struck by the front of the automobile. The case was tried before a jury on the issue of liability only and the jury returned a verdict in favor of the defendants.

From the decision of the District Court reported as, Swindell v. Hellkamp, Fla.App., 232 So.2d 186, we quote:

'The points presented by the appellants are, as stated in their brief:

'Point 1. Whether a minor child 4 years, 7 months old can be guilty of contributory negligence as a matter of law.

'Point 11. Whether the court erred in failing to instruct the jury that a minor operating a motor vehicle is held to adult standards in such operation.

'Under Point 1 the appellants argue Without reference to any of the facts surrounding the minor plaintiff and her accident that she is not chargeable with contributory negligence because as a matter of law a child four years seven months of age cannot be guilty of contributory negligence. With this as a premise, the appellants assert that the trial judge committed reversible error in not granting their motion for a directed verdict as to the issue of the child's contributory negligence which was pled as an affirmative defense. Basically what the plaintiffs are asking this court to do is to lay down a rule As a matter of policy which would have the effect of exempting from contributory negligence all children four years seven months of age.

'Plaintiffs' approach has been rejected in Turner v. Seegar, 1942, 151 Fla. 643, 10 So.2d 320. In that case the Florida Supreme Court held that it was proper for the trial court to have allowed the jury to determine whether or not a child 'nearing six years' was contributorily negligent. The court there said, quoting the earlier case of Dupuis v. Heider, 1934, 113 Fla. 679, 152 So. 659, 661,

"Age is not the determining factor always on the question of the capability of exercising care. If a person is capable, by reason of mentality, intelligence, experience, training, discretion, alertness, Of exercising care in a given situation, he is amenable to the consequences of his contributory negligence in a transaction resulting in his injury.' (Emphasis added.)

'Under this rule the duty of the trial court in dealing with the issue of a child's contributory negligence is to determine by reference to the criteria mentioned above whether or not a jury of reasonable men could reasonably differ on the question of the child's capacity for exercising any self-protective care With respect to the particular circumstances before the court. If it appears that the child unquestionably had no capacity for exercising such care in the circumstances, then of course the trial judge may take the issue from the jury and decide it as a matter of law; however, where jurymen could reasonably disagree on the point, the issue, like any other issue of ultimate fact in a negligence case, should be submitted to the jury with proper instructions. Of necessity, the trial court's handling of this issue cannot be reversed by an appellate court unless error is clearly shown. Such is not the case here. The present record indicates that the minor plaintiff had received instructions from her mother regarding the hazards of traffic; therefore, a jury could reasonably have concluded that she had some capacity for exercising care. The question as to whether or not she exercised that degree of care which the law requires of a child was properly for the jury.

'Likewise we see no merit in the second point which the appellants raise. The trial court instructed the jury properly on the standard of adult care which was applicable to the defendant Ramirez in the operation of the automobile. Had the trial judge charged the jury that a minor is held to an adult standard in operating an automobile this would have been nothing but surplusage even though the underlying proposition of law is correct as an abstract principle.

'The judgment appealed from is affirmed.'

And from the dissenting opinion, inter alia:

'Since the application of the doctrine of contributory negligence is the result of public policy in order that all individuals may remember their own situations and be responsible for their own acts, the doctrine should have no application to a child of tender years under the age of seven, since it is not compelled by public policy prior to this...