— The defendant has appealed from a judgment for the plaintiff in a personal injury suit.
Walter W. Wickman, a boy eleven years of age, while in the act of crossing Rainier avenue, in the city of Seattle, was run into and injured by an automobile driven by appellant. The boy and his mother were intending to take a north-bound street car at the intersection of Rainier avenue and Walden street. They lived three or four blocks west and south of that intersection. The mother and boy left their home at the same time, but the boy was required to return to the house for some purpose and his mother proceeded to the crossing, leaving the boy to follow. The street car which they intended to take had stopped immediately south of the intersection of the two streets and was taking on passengers. At about this time, the boy came up the sidewalk on the westerly side of Rainier avenue, and when he got to a point nearly opposite the rear end of the car — which point was about sixty feet from the nearest intersection corner — he ran across the street for the purpose of approaching the street ear from the rear, and it was while he was crossing the street he was injured.
The negligence charged against the appellant is that he operated his automobile, at the time and place in question, at an unlawful and excessive rate of speed, and that he did not blow his horn or give other warning of his approach. On the contrary, the appellant charged the boy with contributory negligence. All of these questions were submitted to the jury.
The appellant first contends that the court erred in refusing to withdraw from the jury the question of the speed of his car, for the reason that the testimony showed that the speed had nothing to do with the injury. There was testimony from which the jury might have believed that, immediately before the collision,
Appellant seeks reversal on the ground that the court erred in refusing to withdraw from the jury the testimony tending to show that the horn was not sounded. His position is that the evidence conclusively shows that the failure to blow the horn had nothing whatever to do with the injury. The boy testified that, just before he left the sidewalk to cross the street, he looked to the south and in the direction from which the appellant’s automobile was approaching, and not seeing any car, started across the street. It is argued by
Appellant next contends that there was no negligence on his part, and for that reason the court should have taken the case from the jury. What we have already said is sufficient to show that the court was justified in submitting the case to the jury on this question.
It is further claimed the case should have been taken from the jury because the testimony shows, as a matter of law, that the boy was guilty of negligence which materially contributed to his injury. In cases where children are involved, the question of contributory negligence is often close and difficult of decision. What would be negligence in a person of mature age and judgment might not be such in a child of immature judgment. Certainly cases have arisen and will arise where the court, taking into consideration the age of
Let us look at the facts: the boy testified that he looked up and down the street before leaving the sidewalk. He says he did not see appellant’s car. He thinks the reason he did not see it was that his vision was obscured by a telephone pole standing close by. But the appellant says that if the pole interfered it was the absolute duty of the boy to look after the pole ceased to interfere. But we cannot so hold. Such a rule might apply to one of mature mind, but it is too exacting to apply to a child. The appellant cites and quotes from many cases where the facts were very similar to those here, and where it was held that there could be no recovery because of contributory negligence. But those were cases where the person injured was of mature age and judgment. Under all the circumstances surrounding this case, we conclude that the question of contributory negligence was one for the jury.
What we have already said will serve to dispose of the appellant’s argument that the injury was the result of a pure and simple accident, where no person was at fault.
Judgment affirmed.
Parker, C. J., Fullerton, Mitchell, and Tolman, JJ., concur.