264 N.W. 776 | Minn. | 1936
On November 6, 1933, Albert Eckhardt (hereinafter referred to as the plaintiff) was of the age above stated. He attended a country school, and his teacher regularly gave him a ride in her car in the forenoon each school day from his parents' home to school and back home again in the afternoon. On the day above mentioned, at about four p. m., the teacher, as was her custom, stopped the car on her right-hand side of the highway. Plaintiff's home was to the left across the highway. Plaintiff got out of the right side of the car and without looking either to the left or right ran around the rear of the car and onto the highway. He there was struck and injured by defendant's car.
The new trial was granted for errors of law occurring at the trial (the trial court so stating in its order and the memorandum attached thereto). The learned trial court held that it was error to submit the question of contributory negligence of the plaintiff to the jury, being of the opinion: (1) That a child so young was incapable of contributory negligence; (2) that there was no evidence upon which a charge of contributory negligence could be sustained. *272
This appeal squarely raises the question of whether a child under seven years of age can ever be guilty of contributory negligence. 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. Maskaliunas v. Chicago W. I. R. Co.
In Minnesota neither rule has been definitely adopted. In the early cases this court apparently approved of the Massachusetts rule. In Twist v. Winona St. Peter R. Co.
"But the authorities are all one way, and to the effect that even a child is bound to use such reasonable care as one of his age and mental capacity is capable of using; and his failure to do so is negligence."
In Decker v. Itasca Paper Co.
"A majority of the court are of the opinion that the trial court was right in leaving the question of contributory negligence to the jury."
In Roberts v. Ring,
"The question of the boy's negligence was likewise for the jury. * * * In considering his contributory negligence the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity."
This court in Hughes v. Minneapolis St. Ry. Co.
"In this decision we are in harmony with the weight of authority. In Shearman and Redfield, Negligence, § 73a, it is said: 'In nearly all the cases, the question of the power and duty of any child, between three and twelve years of age, to exercise care for its own protection, is held to be one for the jury.' "
However in Converse v. Adleman,
Some doubt may have been thrown on the position of this court by the language used in Hollander v. Dietrich,
"The first three cases cited go quite far enough in considering children of tender years subject to a charge of negligence, even as a matter of fact, and perhaps under ordinary circumstances it would not be held so now."
But in Harkness v. Zube,
"Considering the age of the girl and the place she had reached when struck down, the issue of her contributory negligence was unquestionably for the jury."
Although in Borowski v. Sargent,
Under a proper instruction the Massachusetts rule is the more sound and the one most likely to insure just result. It does not cast upon the general public any and all risks that may be created by the carelessness of a child. Still it does not go so far as to hold a child to a degree of care not commensurate with its age and experience. Under present-day circumstances a child of six is permitted to assume many responsibilities. There is much opportunity for him to observe and thus become cognizant of the necessity for exercising some degree of care. Compulsory school attendance, the radio, the movies, and traffic conditions all tend to have this effect. *275 Under the Illinois rule a child may be guilty of the most flagrant violation of duty and still not be precluded from recovering damages for injuries suffered partly because of such violation. The Massachusetts rule contemplates justice for all parties, irrespective of age. Jurors, by virtue of their office, are competent to judge whether or not a child has exercised a degree of care commensurate with its age, capacity, and understanding. The Illinois rule has no basis in sound reason or logic. It is based upon an outworn historical rule of criminal law which refused to acknowledge any capacity on the part of any child under seven years of age to distinguish between right and wrong.
It is urged that plaintiff, on the evidence, was not guilty of contributory negligene as a matter of law. The child took no precautions whatever to see if a car was approaching from the direction of defendant's car. The weather was clear and it was daylight. The plaintiff got out of the car in which he was riding and, without hesitation, ran around the rear end of the teacher's car and into the path of defendant's machine. The evidence was sufficient to warrant the jury in finding that plaintiff was guilty of contributory negligence. See Murray v. Jacobson,
The order appealed from is reversed. *276