122 Neb. 763 | Neb. | 1932
This is an action to recover damages for personal injuries received in an automobile accident. The plaintiff is a boy seven years of age, and he, together with other boys of a like age, were playing football on a public municipal playground. Larger boys, among whom were high school students, were likewise playing ball and engaged in other athletic sports on other parts of the field, when
The principal error complained of by the plaintiff was the instruction of the court relating to contributory negligence. The defendant in his answer denied negligence on his part, and directly pleaded contributory negligence on the part of the plaintiff, and in the forepart of the instructions the court so stated to the jury. In instruction numbered 10 the court first defined negligence; and in a separate paragraph defined contributory negligence, as follows: “By contributory negligence is meant any negligence of the plaintiff directly contributing to the accident.” And in the same instruction followed a definition of slight and gross negligence.
In instruction numbered 6 the court, in the first paragraph, dealt with the general subject of the care required and duty of small children, or children of tender years. This was followed by a direction that, if the jury found
While the last part of instruction numbered 6, standing alone and without consideration to the first part .thereof, and also apart from the reference to contributory negligence in instructions numbered 1 and 10, might not be construed as submitting to the jury the question of contributory negligence, if any, of the plaintiff, certainly under the whole of instruction numbered 10, when taken in connection with the other two instructions referred to, one cannot believe but that the jury must have considered that the contributory negligence of the plaintiff was submitted for their consideration.
A child of tender years — and it must be conceded that the plaintiff was a child of tender years — is not chargeable with negligence or with contributory negligence. Sacca v. Omaha & C. B. Street R. Co., 98 Neb. 73; De Griselles v. Gans, 116 Neb. 835. That does not mean, however, that the defendant was the insurer of plaintiff’s safety or that the defendant would be responsible for injuries received by the plaintiff which were caused by the recklessness or carelessness of the plaintiff alone with which there was no negligence on the part of the defendant. Contributory negligence presupposes some negligence on the part of both parties and that both are at fault at least to some degree. In determining whether the defendant was negligent at all the jury might well, and should, be told they could consider the acts and conduct of the plaintiff considering his age, discretion and experience.
The defendant argues that the error, if any, was not detrimental to the plaintiff’s interest, and since he recovered a verdict he could not have been prejudiced. Ordinarily that is true, but on the record before us we feel that there is no way of knowing but that the jury may have attempted to weigh, unguided, the degrees of negligence of the parties, when, under the law of this state, the plaintiff could not be chargeable with contributory negligence. ’ “When an instruction is not founded upon the evidence (or law), and is calculated to mislead the jury in considering the facts of the case, the judgment must be reversed.” Mannion v. Talboy, 76 Neb. 570; Trute v. Holden, 118 Neb. 449.
For the reasons above stated, we feel that there must be a retrial of this case; therefore the judgment is reversed and the cause remanded.
Reversed.