Christian v. Goodwin

LILLIE, J. Plaintiffs sued for personal injuries received to the minor plaintiff when defendant’s automobile struck him while crossing the street; one of the affirmative defenses was the contributory negligence of the child. The matter was heard by a jury, and judgment on the verdict was entered in favor of defendant; thereafter plaintiffs ’ motion for new trial was granted on the sole ground of error in law—the trial court’s failure to instruct the jury that the minor plaintiff was incapable of contributory negligence as a matter of law. Defendant appeals from the order granting a new trial. The only issue before us is whether the trial court erred in holding, in effect, that a child of 4 years and 7 months of age is incapable of contributory negligence as a matter of law. It is contended by appellant that the infant’s contributory negligence is a matter to be determined by the jury under proper instructions relating to the child’s age, mental capacity and experience, and due care.

This case comes to us on an agreed statement. There appears to be some conflict in the evidence but for our purpose it is necessary to relate only that in which there is virtually no dispute. The minor plaintiff, a boy then 4 years and 7 months of age, was playing on the porch of a house across the street from where his mother had parked her automobile. She entered the vehicle and drove a short distance to a position directly opposite the house in front of which the boy was playing. She stopped her car and got out, stood on the street and called out to him; the boy responded, whereupon “he fixed his view upon and darted toward the mother.” While crossing the street he was struck by defendant’s automobile.

Relating to the infant’s conduct the jury was given the general instruction that a child is held to exercise only that quantum of care which a person of like age, mentality capacity and experience would ordinarily exercise in a similar situation ; the trial court refused to instruct the jury that the law presumes that a child of the age of plaintiff child is incapable of contributory negligence.

[652]The general proposition that an infant is liable for his torts is established by section 41, Civil Code; however, as to negligence it is a recognized principle that an act which constitutes negligence on the part of an adult does not necessarily constitute negligence when committed by a child - of limited judgment, discretion and experience. (Bowdoin v. Southern Pacific Co., 178 Cal. 634 [174 P. 664] ; Quiroz v. Stuzane, 124 Cal.App.2d 534 [269 P.2d 103].) Prosser sets out the rule in his text on Torts, at page 1086: “Likewise, in thfe case of negligence, children have been recognized as a special group 'to -whom a more or less subjective standard of eondtict is to tie applied, which will vary according to their age, intelligence and experience, so that in many cases immunity is conferred in effect by finding merely that there has been no negligence.” Thus, while-'a child, like an adult, is required to exercise ordinary care, he is only required to exercise that quantum of care which one of like age, experience and development would ordinarily exercise in a similar situation. (Taylor v. Oakland Scavenger Co., 17 Cal.2d 594 [110 P.2d 1044] ; Hernandez v. Murphy, 46 Cal.App.2d 201 [115 P.2d 565]; Hoyt v. Rosenberg, 80 Cal.App.2d 500 [182 P.2d 234, 173 A.L.R. 883]; Singer v. Marx, 144 Cal.App.2d 637 [301 P.2d 440].) This same test is applied in determining a child’s contributory negligence. (Ellis v. D’Angelo, 116 Cal.App.2d 310 [253 P.2d 675]; Morales v. Thompson, 171 Cal.App.2d 405 [340 P.2d 700].)