This is an action for personal injuries received by the plaintiff in Grand Porks, North Dakota, on June 5, 1948, as a result of a collision between an automobile driven by the defendant and a bicycle ridden by the plaintiff. The case was tried' to a jury and a verdict rendered in favor of the defendant. Judgment was entered thereon on order March 24, 1949. Thereafter the plaintiff moved for a new trial. The motion was denied on October 28, 1949. The plaintiff has appealed from the adverse judgment and from the order denying new trial.
At the close of the testimony plaintiff’s counsel stated:
“The plaintiff moves the court that the court direct a vеrdict for the plaintiff, leaving nothing to .the jury except the amount of damages, upon the ground and for the reason that the undisputed testimony of the defendant himself conclusively shows-negligence upon his part in the operation of the automobile, and. because, as a mаtter of law in .the State of North Dakota, a seven year old child cannot be guilty of contributory negligence, leaving nothing for the jury to find except the amount' of damages.”
Upon appeal from the judgment the plaintiff' specifies the denial of the foregoing motion as erroneous. Pie also specifies certain rulings of the trial court on the reception or rejection of evidence, the refusal of requested instructions and the mis *359 Instruction of the jury in certain specified particulars. All of the specifications of error on the aрpeal from the judgment present statutory grounds for a new trial under the provisions of Section 28-1902 RCND 1943.
In paragraph 1 of the Syllabus of Larsen v. Friis,
“Where there is a motion for a new trial, rulings of the trial court which constitute proper grounds for a new trial under the statute must be presented upon such motion; otherwise they will be deemed waived.”
In O’Dell v. Hiney,
In each of these cases appeals were taken from the judgment and from an order denying a new trial. The rule has been affirmed in Ruble v. Jacobson,
The only reference to the sufficiency of the evidence in plaintiff’s motion for a new trial is: “That the evidence in said action Is insufficient to justify the verdict and said verdict is against the law.” This is a generality which does not disclose wherein and to what extent the plaintiff contends the evidence is insuffi
*360
cient. It violates a rule of statute aud decision that: “A specification of insufficiency of the evidence to sustain the verdict or decision of the court shall point out wherein the evidence is insufficient.” Section 28-1809 RCND 1943; Haslam v. Babcock,
.The trial court filed no'memorandum opinion. The order denying a new trial is silent with respect to the sufficiency of thе evidence. On this point there is no action of the trial court be.fore us for review. See Clausen v. Miller,
As grounds for a new trial the plaintiff specifies that the court erred in allowing ordinances of the city of Grand Forks to be submitted in evidence which ordinances1 were not pleaded, that the court erred in allowing the defendant to examine the parents of the plaintiff upon the care they exercised in controlling the safety of the plaintiff and instructing her as to street crossings аnd particularly while on bicycles, and as a final ground the plaintiff, specifies, the denial of six requested instructions.
The plaintiff requested seven instructions the first of which was given and the others refused. Numbers two and seven, deal with the standard of care and conduct' by which the acts of a сhild are to be judged with respect to his negligence. The seventh' requested instruction reads as follows: “You are charged that the jfiaintiff at the time of this accident was of such a tender age that she cannot be guilty of contributory negligence.”
The trial court gave the usual definitions of negligence and contributory negligence and then told the jury: “Negligence, as applied to a minor child, is the doing of that which an ordinarily prudent person of the age, intelligence, experience, and capacity of such child would not do under the same or similar circumstances, or the failure to do that which an ordinarily prudent person of the age, intelligence, experience, and capacity of said child would do under the same or similar circumstances.”
At the time of ,the accident the plaintiff was seven years and eight months оld. She had been riding a bicycle since she was *361 five and conld ride girls’ and boys’ bicycles. She had been told by her parents that when she was going to cross a street she should get off the bicycle. At the time of the accident she was riding a borrowed bicycle, that belonged to a girl twelve yеars old. She could not reach the pedals from the seat and had to stand up to pump the bicycle.
The accident occurred at the intersection of Conklin Avenue and Lewis Boulevard in the city of Grand Forks. The plaintiff was riding along the sidewalk in an easterly direction on the north side of Conklin Avenue and when she reached the sidewalk intersection on the west side of Lewis Boulevard, she turned sharply to the right and to the south onto the crosswalk intersecting Conklin Avenue. The defendant had been driving north on Lewis Boulevard and after signaling .for a left turn, at the interseсtion, he turned to the left and to the west where his car collided with the bicycle on which the plaintiff was riding. The defendant had entered the intersection at a speed of from 10 to 14 miles an hour. His brakes were in good working condition and he stopped almost immediately after the аccident. His car did not run over either the plaintiff or the bicycle, but the impact caused the plaintiff injuries for which she seeks recovery in this action.
The defendant, in his answer, denies negligence on his part and alleges that the plaintiff was guilty of contributory negligence. The plаintiff contends that as a matter of law a child of seven years eight months of age cannot be guilty of contributory negligence and that the court should have so instructed the jury in accordance with the plaintiff’s requested instruction. This state is without precedent on this precise question. In Ruehl v. Lidgerwood Rural Telephone Company,
“A definite age limit, arbitrarily fixed for application in all cases, would have only its definiteness to commend it.” Shear-man and Redfield on Negligence Revised Edition Section 94.
“A
child’s age does not alone determine its capacity to care for itself and to avoid dangers which may threaten. The law does not disregard variations in capacity among children of the same age, and does not arbitrarily fix an age at which the duties to exercise some care begins or an age at which an infant must exercise the same care as an adult.” Camardo v. New York State Railways,
Minnesota has held that a child under seven yеars of age may be guilty of contributory negligence. Eckhardt v. Hanson, 196 Minn 270,
In Wisconsin children of six years of age have been held not incapable as a matter of law of committing negligent acts that were properly found by juries to render them guilty of contributory negligence. Van Lydegraf et al. v. Scholtz et al. 240 Wis
*363
599,
We reach the conclusion that the trial court did not err in denying the plaintiff’s request to instruct the jury that the plaintiff could not he guilty of contributory negligence.
Plaintiff’s requested instructiоn number two is covered in substance by the trial court’s definition of negligence as applied to a minor child which we have quoted above. Prejudicial error did not result from the refusal of the trial court to give the instruction requested. The remaining requests- are either not appliсable to the facts of the case or present points adequately covered by the instructions given.
The defendant pleaded contributory negligence on the part of the plaintiff in general terms. In connection with his proof under this allegation the defendant offered and the court received in evidence over plaintiff’s objection, an ordinance of the city of Grand Porks which provided: “A person propelling a bicycle or motorcycle shall not ride other than upon the permanent and regular seat attached therеto, nor carry any other person upon such bicycle or motorcycle other than upon a firmly attached and regular seat thereon, nor shall any person ride upon a bicycle or a motorcycle other than above authorized.”
The defendant argues thаt the state courts of North Dakota do not take judicial notice of municipal ordinances and that consequently, an ordinance may not be admitted in evidence unless pleaded.
The rule for which the plaintiff contends is applicable when the violation of a municipal ordinance is relied upon as the basis for the action, but it does not apply where the action is not founded upon the ordinance, but in the course of the trial the ordinance becomes material as evidence under a general allegation. In that cаse it may be proved like any other fact or circumstance of evidentiary value. In the Cyclopedia of Automobile Law and Practice, Blashfield Permanent Edition, Section 5953, it is said:
“If the observance of an ordinance is a condition precedent *364 to a right of action, or if the action is based upon an ordinance, it must be- alleged as wеll -as proved. If, however, the action is based generally on negligence, the acts complained of constituting a violation of the ordinance,'the ordinance, and breach thereof may be received in evidence, not as conclusive proof of the nеgligence charged, but as some evidence which the jury may consider. This is the general rule. It is on the theory that, since the plaintiff’s cause of action is not founded on the ordinance, it is unnecessary- to plead it, but the ordinance is relevant and material as evidence, if it hаs a .bearing on the issues made by the specifications of negligence set up in the complaint or petition.”
The defendant under its answer alleging contributory negligence was entitled to prove the ordinance of the city of Grand Forks and its violation by the plaintiff,' as tending to shоw negligent conduct on the plaintiff’s part although no reference to the ordinance is made in the answer. 38 Am Jur Negligence Section 331; Harmen v. Sladofsky, 301 Mass 534,
The specification: “That the court erred in allowing the defendant to examine the parents of plaintiff upon the care they ■exercised in controlling the safety of the plaintiff and instructing her as to street crossings, and particularly while on bicycles”; is not in proper form. • It is not stated with sufficient par- - ticularity. An assignment of error based- upon the erroneous •admission of evidence must be directеd to some specific ruling of the trial court and must challenge the correctness of that ruling. Willoughby v. Smith,
Upon a review of the points urged by the plaintiff in support of her motion for a new trial we reach the conclusion that they *365 disclosed no prejudicial error. Tbe order and judgment appealed from are affirmed.