Untalan v. Glass

California Court of Appeal Mar 24, 1961 No. Civ. 19261Published

Before: Stone

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Holding. The court held that it was prejudicial error to instruct the jury on the contributory negligence of a 3-year-old child and to instruct on the statutory duty of a bicycle rider who was not a party to the action.

Issues

Whether a child of 3 years and 7 months is capable of being contributorily negligent as a matter of law.
Whether instructing the jury on the statutory duty of a non-party bicycle rider constitutes prejudicial error.

Disposition. reversed

Quotations verified verbatim against the opinion

“a number of California cases have held that children 4 years of age and under do not have sufficient capacity to be guilty of negligence.”

“Therefore, it was error to instruct the jury relative to the contributory negligence of minor plaintiff, a youngster 3 years and 7 months of age.”

“It matters not that the instruction was an accurate statement of the law since it was not within the issues of the case.”

STONE, J. pro tem.

This appeal is taken from a judgment for defendant entered pursuant to a jury verdict. The minor plaintiff and appellant was

3y2

years old when the accident occurred. This action was brought by his father as guardian

litem, who also sued on his own behalf to recover special damages.

Defendant was driving his car 30 to 35 miles per hour in a westerly direction on Berryessa Road in Santa Clara County

[476]

about 2:45 p. m. on July 7, 1957. The weather was clear and the roadway dry. As defendant approached the scene of the accident, the minor plaintiff’s aunt, a girl of 7% years, was riding her bicycle easterly on the north shoulder of Berryessa Road. She was riding toward the defendant, who was traveling westerly on the same side of the road. The girl turned her bicycle to her right, crossing in the path of the approaching car of defendant. He applied his brakes and swerved to his right to avoid her and as he did so, he struck the 3%-year-old plaintiff who had been running along behind the girl. The boy apparently was on the shoulder of the roadway and he and defendant’s car collided at the edge of the traveled portion of the pavement. The accident occurred at the place where a private driveway from the boy’s home entered Berryessa Road.

Plaintiffs base this appeal solely on instructions given, the contention being that it was error to instruct on (1) contributory negligence of the minor plaintiff, and (2) statutory duty of a bicycle rider. The court defined contributory negligence and instructed the jury that the defense applied to the minor plaintiff as well as to his father. The court also instructed upon the standard of care applicable to a child but plaintiffs assert error nevertheless because the youngster was only 3% years old and incapable of being contributorily negligent as a matter of law. Plaintiffs are correct; a number of California cases have held that children 4 years of age and under do not have sufficient capacity to be guilty of negligence.

(Gonzales

Untalan v. Glass

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