Toetschinger v. Ihnot

• Decision Date: 27 January 1977
• Docket Number: No. 44574,44574
• Citation: Toetschinger v. Ihnot, 312 Minn. 59, 250 N.W.2d 204 (Minn. 1977)
• Parties: Joan TOETSCHINGER, Individually and as Parent and Natural Guardian of Paul Toetschinger, a Minor, Appellant, v. Thomas IHNOT, et al., Respondents.
• Court: Minnesota Supreme Court

Page 204

250 N.W.2d 204

312 Minn. 59

Joan TOETSCHINGER, Individually and as Parent and Natural Guardian of Paul Toetschinger, a Minor, Appellant, v. Thomas IHNOT, et al., Respondents.

No. 44574.

Supreme Court of Minnesota.

Jan. 27, 1977.

Syllabus by the Court

1. A jury finding of negligence chargeable to a child 5 years and 8 months of age is sustained by the evidence.

2. Where a child standing in a position of safety at the curb of a public highway suddenly ran across the roadway, the driver of an automobile on the highway was entitled to an instruction embodying the rule of sudden emergency.

3. The refusal of the trial court to instruct the jury concerning the effect of knowledge of the likely presence of children in the vicinity of a roadway was not erroneous under the facts of this case.

4. The refusal of the trial court to read to the jury Minn.St. 169.14, subd. 2, concerning maximum speed limits, Held, not erroneous where evidence established that the authorized posted speed limit at the time and place of the accident involved was 45 miles per hour.

Jardine, Logan & O'Brien and Michael J. Healey, St. Paul, for appellant.

Murnane, Murnane, Battis & Conlin, Thomas M. Conlin and James J. Boyd, St. Paul, for respondents.

Considered and decided by the court en banc.

SHERAN, Chief Justice.

Appeal from a judgment of the district court of Ramsey County entered in favor of defendants following an action for damages caused by an automobile accident. We affirm.

On Monday, April 3, 1972, at about 2:35 p.m., Paul Toetschinger, then 5 years and 8 months of age, sustained injuries when struck by an automobile owned by defendant Thomas Ihnot and operated with his permission and consent by his wife, defendant Candyce M. Ihnot. The collision occurred near the 'T' intersection where Eleventh Avenue in the Village of Maplewood meets White Bear Avenue, a protected thoroughfare. White Bear Avenue, a four-lane highway about 50 feet wide, extends in a northerly and southerly direction through the Village of Maplewood. Eleventh Avenue extends from it in an easterly direction and, including a median strip, is about 80 feet wide. These streets are relatively straight and level near the area of the accident. There are no sidewalks at or near the intersection, and no crosswalk markings for pedestrians. A Montgomery Ward & Co. storage facility surrounded by a parking area is located below street level and to the south and west of the intersection. An entranceway leading to it branches off from White Bear Avenue at a point about 35 feet south of the south curb line of Eleventh Avenue extended. Except for a few houses located south of Eleventh Avenue and east of White Bear Avenue, there are no residential or other structures in the immediate area of the accident. At the time of the accident the concrete surface of White Bear Avenue was dry and the weather was not inclement.

As the Ihnot car approached the 'T' intersection from the north in the easterly south-bound lane of White Bear Avenue, Paul Toetschinger was standing between his sisters, Anne and Mary, 11 and 10 years of age, in the grass near the east curb line of White Bear Avenue, about 20 feet south of the south curb line of Eleventh Avenue. Susan Wilke, a 9-year-old friend, was with them. They were returning to their home, situated southwest of the Montgomery Ward parking lot, from a shopping trip to a Target store located about 3 blocks east of White Bear Avenue. Laurie and Julie Johnson, 9 and 7 years of age, who went with them to the Target store, had crossed White Bear Avenue and, apparently, were proceeding into or down the entranceway to the Montgomery Ward parking area.

As defendant Candyce M. Ihnot, 23 years old at the time of the accident, approached from the north on White Bear Avenue, she was driving a 1965 Chevrolet Impala at a speed which she estimated to be about 35 miles per hour. She was in a posted 45-miles-per-hour zone. With her in the front seat were her sister, Jacqueline Gavin, an adult, and two infants. When they were about 80 to 100 feet north of the intersection, Mrs. Ihnot recognized that the four persons standing just to the east of the curb of White Bear Avenue and southeast of the intersection were children. The Johnson girls were not in sight. There were no cars parked in the area to obscure her vision and there were no distracting circumstances. Mrs. Ihnot's reaction was to withdraw her foot from the gas pedal, but she did not otherwise change her course or brake her speed. The children appeared to be in a position of safety and she assumed that they would remain there. But, just as she entered the intersection, she observed Paul suddenly leave the other children, running head down toward the west side of White Bear Avenue. Mrs. Ihnot applied her brakes and attempted to turn the vehicle to her right. She brought her car to a stop facing in a southwesterly direction about 100 feet south of the north curb line of Eleventh Avenue extended, with all but the front right portion of it at rest in the more easterly portion of the southbound lane of White Bear Avenue. Seventy-three feet of tire marks were later observed extending northerly from its front wheels where it had come to a stop. Just before she was able to bring her automobile to a stop, it collided with Paul Toetschinger near the point of juncture of its left front fender and its bumper. He fell to the street, where he was observed near the front left door of the car by Mrs. Ihnot after she had stopped and stepped from it to give him aid. His mouth was injured and he had sustained a fractured femur of his right leg.

The six-person jury returned a special verdict, finding that the accident was caused by the negligence of Paul Toetschinger to the extent of 80 percent and by the negligence of Candyce Ihnot to the extent of 20 percent. Paul's damages were fixed at $2,500 and those of his mother at $6,600.

Post-trial motions were denied; judgment was entered for defendants, and this appeal was taken.

On this appeal it is contended:

(1) The finding of 80-percent negligence attributable to Paul Toetschinger cannot be sustained by the evidence;

(2) The trial court erred in giving the following instruction to the jury:

'A person confronted with an emergency through no negligence of his own, or her own, who, in an attempt to avoid the danger, does not choose the best or safest way is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.'

(3) The trial court erred in failing to give an instruction specifically concerning knowledge of the presence of children as a circumstance affecting the duty to use reasonable care;

(4) The trial court erred in failing to instruct the jury pursuant to Minn.St. 169.14, subd. 2, concerning maximum speed limits;

(5) The damages returned were insufficient as a matter of law.

1. Although Paul Toetschinger was only 5 years and 8 months of age at the time of the accident, his negligence was properly submitted to the jury by the trial court, which instructed:

'In the case of a child, reasonable care is that care which a reasonable child of the same age, intelligence, training and experience as Paul Toetschinger at the time of the accident would have used under like circumstances.'

The submission of the issue, and the instruction as given, accords with the uniform holding of this court. See, Rosvold v. Johnson, 284 Minn. 162, 169 N.W.2d 598 (1969); Pelzer v. Lange, 254 Minn. 46, 93 N.W.2d 666 (1958); Bruno v. Belmonte, 252 Minn. 497, 90 N.W.2d 899 (1958); Watts v. Erickson 244 Minn. 264, 69 N.W.2d 626 (1955); Audette v. Lindahl, 231 Minn. 239, 42 N.W.2d 717 (1950); Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776, 107 A.L.R. 1 (1936).

Plaintiffs urge that under the Minnesota rule the defendant must establish the level of a child's capacity as a precondition for the submission of the issue of contributory negligence. In this case, evidence was offered to show that Paul Toetschinger's mental and physical characteristics were like those of other children of his age, although he may have been more impulsive, immature and hyperactive than others. His experience with the dangers of traffic were limited, perhaps, but no more so than one would anticipate on the basis of his age. He had attended kindergarten but was apparently not considered ready for the first grade. We do not believe the situation to be different from that controlled by the authorities cited. We have given consideration to the advisability of adopting the rule, in force in some states, that children under the age of 7 years cannot be held contributorily negligent, and we have concluded that the rule to which we adhere has been so long and firmly established as to make abandonment of it at this time under the facts of this case inadvisable.

It is of course true, as stated in the dissenting opinion, that principles of stare decisis should not preclude changes which advance the administration of justice. But with respect to the problem before us, it is submited that to reject our present rule concerning the contributory negligence of children in favor of an arbitrary declaration that children under the age of 7 years are incapable of exercising due care for their own safety would, in accordance with the analysis that follows, be unwise.

In Eckhardt v. Hanson, 196 Minn. 270, 272, 264 N.W. 776, 777, 107 A.L.R. 1, 2 (1936), the Illinois rule preferred by the dissenting opinion and the Massachusetts rule now in effect in this state were compared in this way:

'* * * Under the so-called Illinois rule (which is analogous to the common-law rule with respect to the nonresponsibility of such young children for criminal acts), it is held that a child under seven is incapable of contributory negligence. * * * This rule has the merit of being easy to apply. However, it is arbitrary and always open to...