Yarborough v. Berner

• Decision Date: 28 April 1971
• Docket Number: No. B--2339,B--2339
• Citation: 467 S.W.2d 188
• Parties: Alfred Kent YARBOROUGH a/n/f Jeffrey Lee Yarborough, Petitioner, v. James BERNER, Respondent.
• Court: Texas Supreme Court

Page 188

467 S.W.2d 188

Alfred Kent YARBOROUGH a/n/f Jeffrey Lee Yarborough, Petitioner, v. James BERNER, Respondent.

No. B--2339.

Supreme Court of Texas.

April 28, 1971.

Lucas, Hudson & Friedman, G. Robert Friedman, Houston, for petitioner.

Stafford & Patten, J. W. Patten, Houston, for respondent.

POPE, Justice.

Jeffrey Lee Yarborough, a child between four and five years of age, sustained injuries when he was struck by a car driven by the defendant, James Berner. Jeffrey's father, Alfred Kent Yarborough, suing on his own behalf, recovered a judgment in the sum of $2,000 for past and future medical expenses. Mr. Yarborough also sued as next friend of Jeffrey. In this capacity he recovered judgment in the sum of $8,000 for Jeffrey's past and future physical pain and mental anguish. The court of civil appeals has reversed the judgment for medical expenses and rendered judgment that the father take nothing in this portion of the cause of action. The court has also reversed the judgment for Jeffrey's pain and mental anguish, but it remanded that portion of the cause for a new trial. Tex.Civ.App., 456 S.W.2d 753. We remand the entire cause to the trial court for a new trial.

Mr. and Mrs. Yarborough and their three children arrived at Galveston beach about mid-afternoon on June 5, 1966. They drove their car to an area where there were no other cars and parked their car about 100 feet from the waterline. Mrs. Yarborough took Jeffrey and his six-year-old sister to the water's edge, and then returned to the car to be with her husband and their infant child. It was a clear sunny day and there was nothing to obstruct the parents' view of their children on the beach. About fifteen minutes after the Yarboroughs arrived at the beach, defendant Berner drove his station wagon along a car path located between Jeffrey and his parents. Berner was followed by a car driven by James Paul Reed. Berner and Reed were driving to a place where they planned to do some seining.

Mrs. Yarborough, Berner, and Reed testified about the occurrence. Mrs. Yarborough said she looked up and saw Jeffrey coming toward the Yarborough car as Berner's car approached him. Berner's car momentarily blocked her view of Jeffrey, but she then saw that Jeffrey had been hit. Berner's car did not run over Jeffrey, but the child suffered a head injury. Reed testified that he was following Berner and was about eighty feet behind him. He said that Jeffrey was sitting close to the car path when he 'jumped up and darted in front of his (Berner's) car very fast.' Defendant Berner was indefinite about the time he first saw Jeffrey. He said Jeffrey was 'in front of the car and right to the side of it' when he first saw him. He also testified that 'he just darted out in front of me.' The father did not see the accident.

The jury refused to find that Berner was driving at a speed faster than a reasonable prudent person would have driven in the exercise of ordinary care under the same or similar circumstances, or that his failure to sound his horn was negligence, or that he failed to apply his brakes, or that his failure to turn his vehicle was negligence. The jury found, however, that Berner failed to maintain a proper lookout which was a proximate cause of the collision. They also found that the Yarboroughs' failure to supervise the child was negligence but refused to find that this negligence was a proximate cause of the accident. The court of civil appeals has held that the parents' negligence in failing to properly supervise Jeffrey was a proximate cause of the accident as a matter of law. Because of the parents' contributory negligence, that court ruled that the father, individually, take nothing.

In our opinion, whether the parents' negligence proximately caused the accident was a fact issue for the jury to determine from all the facts and circumstances. Benoit v. Wilson, 150 Tex. 273, 239 S.W.2d 792, 797 (1951); Hopson v. Gulf Oil Corp., 150 Tex. 1, 237 S.W.2d 352, 356 (1951). The facts and circumstances in this case show that the family was on an open beach which was almost deserted. The accident occurred about fifteen minutes after the family arrived at the beach and during that time only one other car passed along the beach up to the time of Berner's arrival. It was within the jury's province in making its determination to consider the generally isolated conditions in an area of recreation, the distance from the parents to the children, the fact that the parents had left the young child with an older sister, and all other circumstances. Motsenbocker v. Wyatt, 369 S.W.2d 319 (Tex.1963); Sciachitano v. City of Beaumont, 266 S.W. 558 (Tex.Civ.App.1924, no writ); Baker v. Dallas Hotel, 73 F.2d 825 (5th Cir. 1934); Annot. 51 A.L.R. 209, 218--229 (1927). For this reason the court of civil appeals erred in holding that the parents, as a matter of law, should have foreseen the accident.

Defendant Berner, by counterpoint, says that the trial court erred in refusing to submit issues concerning the negligence of Jeffrey. In our opinion Jeffrey was incapable of exercising those qualities of attention, perception, knowledge, experience, intelligence, and judgment which were necessary to enable him to perceive the risk and to realize its unreasonable character. See 2 Restatement of Torts 2d, Sec. 283B (1965). The common law rule that a child beneath the age of seven, as a matter of law, was incapable of negligence, was modified in Sorrentino v. McNeill, 122 S.W.2d 723 (Tex.Civ.App.1938, writ ref.). The court adopted the rule that a child would be held to that degree of care which an ordinary prudent child of the same age, experience, intelligence, and capacity would have used under the same or similar circumstances. Even under this rule, however, at some age a child is too young to be negligent as that term is used in law. Prosser says, 'As the age decreases, there are fewer possibilities of negligence, until finally, at some indeterminate point, there are none at all.' He places this age 'somewhere in the neighborhood of four years of age.' Prosser, Law of Torts, Sec. 32 (3d ed. 1964).

In Sorrentino the child was six years old and his contributory negligence was held to be a jury issue. In Gulf Production Co. v. Quisenberry, 128 Tex. 347, 97 S.W.2d 166 (1936) it was held that a jury question was presented as to whether a five-year-old child was too young to understand and avoid a danger in an attractive nuisance case. On the other hand, this court held in Eaton v. R. B. George Investments, 152 Tex. 523, 260 S.W.2d 587 (1953) that a child who was three years and eight months old was too young to realize the risk or danger of going about a dipping vat in which the child drowned. See also Shaw v. Null, 397 S.W.2d 523 (Tex.Civ.App.1965, no writ). In Temple Lumber Co. v. Living, 289 S.W. 746 (Tex.Civ.App.1926, writ ref.), it was suggested that a child beneath the age of five, as a matter of law, is incapable of negligence and held that a child who was four years and nine months old could not be negligent. We adhere to the guideline suggested in that case, and hold that Jeffrey, who was four years and ten months old was incapable of negligence as a matter of law. The trial court properly refused the requested issues about Jeffrey's contributory negligence.

Jeffrey's lack of capacity to be negligent, however, is the reason that defendant Berner, as held by the court of civil appeals, was entitled to his requested issue on unavoidable accident. The father, individually and as next friend of Jeffrey, says that unavoidable accident is not a proper issue in a situation in which the accident could have been prevented by either party by the exercise of common prudence citing Dallas Ry. & Terminal Co. v. Darden, 38 S.W.2d 777 (Tex.Com.App.1931, jdgmt. adopted). Unavoidable accident is present when an event occurs which was not proximately caused by the negligence of any party to the event. Dallas Ry. & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379 (1952); Hicks v. Brown, 136 Tex. 399, 151 S.W.2d 790 (1941). Berner's requested issue of unavoidable accident included that definition of the term. Professor Hodges says that 'under such a definition the conduct of any person could not be the basis for a finding that there was an unavoidable accident * * *. The result is that the issue is to be used only to inquire about the possible causal effect of some physical condition of circumstance.' Hodges, Special Issue Submission in Texas, Sec. 19 (1959). This would ordinarily include such non-human things as fog, snow, sleet, wet or slick pavement, or obstruction of the view.

The evidence in this case suggests no cause for the accident other than the conduct of the parties to the event, the defendant Berner and the child Jeffrey. This seems to support the trial court's refusal to submit the unavoidable accident issue under the usual definition of unavoidable accident. However, the general statement of the rule contemplates that the parties to the event will be capable of negligence. We are here dealing with one party who was a child so young as to be incapable of negligence. According to some of the evidence, Jeffrey darted into the path of the vehicle. In our opinion, proof of such facts raised unavoidable accident. Childress v. Martens, 444 S.W.2d 362 (Tex.Civ.App.1969, writ ref. n.r.e.); Shaw v. Null, 397 S.W.2d 523 (Tex.Civ.App. 1965, no writ); Haynes v. Martinez, 260 S.W.2d 369 (Tex.Civ.App.1953, writ ref. n.r.e.); Wichita Transit Co. v. Sanders, 214 S.W.2d 810 (Tex.Civ.App.1948, no writ); Hodges, Special Issue Submission in Texas, Sec. 21 (1959). Upon the retrial of this cause, if there is evidence of...