92 Wash. 642 | Wash. | 1916
The plaintiff, Jorgenson, by his guardian ad litem, seeks recovery of damages which he suffered when he was six years and eight months old, as the result of the alleged negligence of the defendant, Crane, in leaving on or near the school ground where the plaintiff was attending school a wheel scraper which attracted the plaintiff and other children, resulting in their playing with it and causing his injury.
A former appeal to this court from findings and judgment in favor of the defendant, following a trial by the court without a jury, resulted in a reversal of that judgment and the remanding of the case for new trial. This court being of the opinion that the plaintiff was entitled to recover upon the evidence introduced at the trial, stated the law of the case in its opinion as follows:
“If the wheeled scraper was an appliance with which it was dangerous for children of such tender years as were in attendance on this school to play in the manner in which they did play with it, and the respondent knew, or as a reasonable person ought to have known, that they would so play with it when he left it upon the school grounds, then it was negligence on his part to leave the scraper on the school grounds in an unfastened and unguarded condition, and he is responsible in damages for any injury to any such child caused thereby.” Jorgenson v. Crane, 86 Wash. 273, 150 Pac. 419.
The new trial in the superior court, being had with a jury, resulted in a verdict in the plaintiff’s favor for the sum of $363. The evidence seems to show without dispute that the father of the plaintiff incurred $362 indebtedness in hospital
The principal contention of counsel for appellant seems to be that the leaving of the wheel scraper by him, as shown by the evidence introduced upon the second trial, did not constitute negligence on his part, and that the trial court erred in declining to so rule, as a matter of law, in denying the motion for judgment of dismissal notwithstanding the verdict. Our decision upon the former appeal answers this contention unless, as counsel claims, the evidence upon the second trial conclusively shows that the scraper was not left on the school ground, and for that reason appellant is not chargeable with negligence. It is true that our former decision proceeds upon the theory that the scraper was left by appellant on the school ground, as the evidence introduced upon the first trial, we may now concede, seemed to show.
Contention is made in appellant’s behalf that the evidence conclusively shows that respondent was guilty of contributory negligence and fully appreciated the danger in playing with the scraper. We may concede that there is room for argument that it might be so determined as a matter of fact, but we are quite convinced that it cannot be so held as a matter of law. It would indeed require a very strong and convincing showing to warrant a court in holding a child of such tender years guilty of contributory negligence, as a matter of law, such as to prevent his recovery for injuries received as the result of the negligence of a person of mature years. We conclude that appellant has no cause to complain of the leaving of the question of respondent’s contributory negligence to the jury by the trial court.
We do not understand that counsel for appellant seriously contend that the trial court erred in granting respondent a new trial, apart from the denial of appellant’s motion for judgment of dismissal notwithstanding the verdict. If, however, such contention is intended, we think it is without merit, in view of the fact that the evidence seems to plainly warrant a more substantial recovery by respondent, if he is entitled to any recovery. It is plain, therefore, that the trial court
The order denying appellant a judgment of dismissal notwithstanding the verdict and the order granting respondent a new trial are affirmed.
