Richards v. Relles

PEEK, J.

This is an appeal by the defendant Relles from a judgment in favor of plaintiff and against Relies alone (the jury having found in favor of the defendant Viani) for

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damages alleged to have been sustained by plaintiff as a result of being struck by a rock thrown by Relies.

The evidence, which is not in contradiction, shows that four years prior to the trial of the action the plaintiff Patrick Richards, who was then approximately 4% years of age, was playing in a lot near his home with his older brother Jimmy and younger brother Gary. The defendants, Ross Relies and Harry Yiani, who were between 8 and 9 years of age, were playing in a vacant lot immediately across the street from plaintiff. The defendants were throwing rocks and clods of dirt at various bottles and cans. Upon seeing the plaintiff and his brothers, Relies, to scare the Richards children, began throwing rocks and clods of dirt at them. Before the oldest of the Richards brothers was able to get them home, Patrick was struck in the eye by one of the objects, causing serious injury which resulted in permanent impairment of his vision. Appellant Relies does not contend, nor could he, that there was insufficient evidence to support the conclusion of the jury upon the question of actionable negligence; however he does contend that the court committed prejudicial error, first in the giving of certain instructions, and second in the refusal to give a particular instruction submitted by him.

The three instructions which form the basis of appellant’s first contention are found in B.A.J.I., being Numbers 101, 101-A and 102, respectively, and are as follows:

“101. Negligence—Basic Definition.

“Negligence is the doing of some act which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, actuated by those considerations which ordinarily regulate the conduct of human affairs. It is the failure to use ordinary care in the management of one’s property or person.”

“101-A. Negligence—a Relative Term.

“Negligence is not an absolute term, but a relative one. By this we mean that in deciding whether there was negligence in a given case, the conduct in question must be considered in the light of all the surrounding circumstances, as shown by the evidence.”