128 Wash. 149 | Wash. | 1924
Two actions are here involved, one by respondént A. W. Maddux to recover for medical expenses and loss of service of his minor son, growing out of personal injuries sustained by being struck by appellant’s automobile, and the other by A. W. Maddux, as guardian ad litem for the son, to recover for personal injuries so received. By stipulation the eases were consolidated for trial, and judgments were entered on the several verdicts of the jury; in the first mentioned case for $1,581.20, and in the last mentioned for $1,500. The defendant has appealed from both judgments.
At the time of the accident, the boy, Thurlow, lacked four days of being twelve years of age; was in the third
There might have been some slight evidence to go to the jury on the question of appellant’s negligence, but we can see no question for the jury as to the boy’s contributory negligence. Taking his own evidence and giving it the construction most favorable to him, he started across the driveway immediately in front of an approaching automobile, which he had previously known was approaching, at a place where he knew pedestrians did not have the right of way, and while he says he looked and saw no car, yet all reasonable minds must agree that either he did not look or he paid no attention to what he inevitably saw. Apparently the trial court left this question to the jury because of the boy’s tender years; but he was practically the same age as that of the boy whose actions were discussed in Olson v. Payne, 116 Wash. 381, 199 Pac. 757, and we think as well advised as to the dangers of the situation. The more recent case of Blair v. Kilbourne, 121 Wash. 93, 207 Pac. 953, while turning upon another point, discusses contributory negligence of a child of nine years of age, and strengthens the view we have already expressed.
The question of contributory negligence was properly raised by a motion for an instructed verdict, and a motion for judgment n. o. v., one of which should have been granted.
The judgments appealed from are reversed with instructions to dismiss both actions.