Von Saxe v. Barnett

• Decision Date: 20 July 1923
• Docket Number: 17786.
• Parties: VON SAXE v. BARNETT et ux.
• Court: Washington Supreme Court

217 P. 62

125 Wash. 639

VON SAXE v. BARNETT et ux.

No. 17786.

Supreme Court of Washington

July 20, 1923

Department 1.

Appeal from Superior Court, King County; J. T. Ronald, Judge.

Action by Herman Von Saxe, Jr., by Herman Von Saxe, his guardian ad litem, against Jacob E. Barnett and wife. Judgment for defendants, and plaintiff appeals. Reversed and remanded with directions.

Arthur G. Cohen, Max Hardman, and Stern & Cohen all of Seattle, for appellant.

Poe Falknor & Falknor, of Seattle, for respondents.

HOLCOMB J.

Appellant a minor, through his guardian ad litem, sued to recover damages for injuries sustained on account of being struck by an automobile driven by the reasondent husband, Jocob E. Barnett. At the time of the accident appellant was five years and four months old. He was struck by an automobile belonging to respondents on Boren avenue, while he was crossing in a westerly direction between Spring and Madison streets, Seattle, the respondent's automobile approaching from the north. The negligence charged was that the automobile was operated at a high and dangerous and unlawful rate of speed, greater than 20 miles per hour, in a thickly settled portion of the city; that the driver of the car failed to drive it in a careful and prudent manner, and at a reasonable rate of speed, having due regard for the traffic, and so as not to injure life, limb, and property, and that the driver failed and neglected to sound any signal device or warning, where there was danger of collision, and failed to drive his car as near the right-hand curb of the street as possible, and that all these matters constituted violations of the ordinances of the city of Seattle as pleaded. The nature of the injuries were then pleaded.

The answer, besides denying the allegations of the complaint, pleaded affirmatively that appellant had been guilty of contributory negligence. A motion to strike the plea of contributory negligence contained in the answer was sustained by the judge that settled the pleadings. On trial, however, the trial judge submitted the question of the capacity of the appellant and his contributory negligence to the jury. While there was conflicting testimony, the evidence as to the negligence of respondents was sufficient to take the case to the jury.

The trial court admitted evidence as to the capacity of the child, and instructed the jury that the question of the capacity of the child and of its acts constituting contributory negligence were questions of fact for them to determine.

The evidence as to the capacity of the child was given by his father, and to the effect that the child was five years and four months old at the time of the accident. He had been going to kindergarten prior to the accident for about a year, and had to cross Marion, Summit, Spring, Seneca, University, and Union streets in going to and from kindergarten. The father had always cautioned the child about the danger of automobiles, and the child was always very careful. He appreciated the danger of automobiles, and knew that they would hurt him, and that it was dangerous to cross the street without looking. He had been cautioned to that effect from the time he was three years old. He was observed frequently to look both sides of the street before crossing. In view of this testimony respondent insists that the boy's intelligence, previous experience on well-traveled highways, unerstanding the dangers involved, and of the caution necessary to be exercised in avoiding them, justified the submission of the question of his contributory negligence to the jury. The evidence as to the contributory negligence of the child was that, while playing at the side of the street with two other boys, he had darted from behind the screen of a standing automobile at a point between street intersections, directly in front of, and not more than three feet distant from, respondents' car as it approached.

We have several times indicated, although obiter in some, at least, of the cases decided, that a child of such tender years is incapable of contributory negligence. In Gregg v. King County, 80 Wash. 196, 141 P. 340, Ann. Cas. 1916C, 135, we stated:

'In the absence of evidence to the contrary, a child of six or seven years of age 'is everywhere presumed to be incapable of contributory negligence''--citing 1 Sherman & Redfield on Negligence (6th Ed.) § 73A.

And in Kelley v. School District No. 71, 102 Wash. 343, 173 P. 333, it was said:

'The plaintiff was nine years of age. It may be doubtful, we think, whether a child of her tender years could, in any event, be held to the doctrine of assumption of risk or contributory negligence.'

Also, in Olson v. Payne, 116 Wash. 381, 199 P. 757, we stated:

'Many, and probably a majority, of the courts of this country have held that a child five or six years of age or under cannot, but that a boy of ten or twelve years of age may, under some circumstances, be guilty of such contributory negligence as will preclude recovery for his injury.'

We have several times held, in cases involving children of from seven to fourteen years, that the question of the capacity of such child was a question of fact, and not of law, since the presumption of incapability did not attach at such ages. Mitchell v. Tacoma Railway & Motor Co., 9 Wash. 120, 37 P. 341 (child of eight years and four months); Roberts v. Spokane Street Railway Co., 23 Wash. 325, 63 P. 506, 54 L. R. A. 184 (boy of ten years and nine months); Boyer v. Northern Pacific Coal Co., 27 Wash. 707, 68 P. 348 (boy of thirteen years and seven months of age, on the question of the assumption of risk). And we held in the Boyer Case, supra, that----

'There can be no fixed period when a minor may be held, as a matter of law, to appreciate danger which may surround him. His appreciation of danger will depend more upon his intelligence and experience than upon his age. * * * So that the question of age, when compared with natural intelligence and past experience, may have very little influence in determining the ability of a minor to appreciate danger. * * * The question whether or not the minor appreciated the danger to which he was subjected is usually a question of fact for the jury, under proper instructions, not a question of law for the court.'

Those principles were applied, however, of children of more mature age, where the presumption of incapacity was rebuttable and might be removed by evidence.

In Johnson v. Bay City, 164 Mich. 251, 129 N.W. 29 Ann. Cas. 1912B,...