AREND, Justice.
The plaintiff, Wilbern B. Patterson, brought this action as next friend on behalf of his minor son for injuries sustained by the latter as a consequence of the alleged negligent operation by the defendant, Helen Cushman, of an automobile maintained as a family car by herself and her husband, the other defendant. From a verdict and judgment of nonliability in favor of the defendants, the plaintiff prosecutes this appeal. Pertinent facts will be raised as they may be required for an. understanding of each issue as it is being discussed in this opinion.
The first issue raised by the plaintiff concerns the trial court’s refusal to strike the defendants’ affirmative defense of contributory negligence and its subsequent treatment of the question of contributory negligence by children in its instructions to the jury. These instructions were quite lengthy and it would serve no useful purpose to set
them forth verbatim in this opinion. In essence they informed the jury that neither negligence
nor contributory negligence were ever presumed; that in order to prevail upon their defense of contributory negligence the defendants would have to prove the same by a preponderance of the evidence ; and that any evidence of negligence on the part of the injured child proximately contributing to the accident and the resulting injuries would bar recovery by him.
The plaintiff complains that the instructions laid so much stress upon contributory negligence that the minor was deprived of a fair trial; and he contends that the court should have stricken the defense of contributory negligence, or at least have instructed.the jury, as requested by him, that a child under seven years of age cannot as a matter of law be guilty of negligence or contributory negligence. In other words, he is saying that Alaska should adopt what has become known as the Illinois rule, or the rule of conclusive presumption, that
“[A] child under seven years of age is incapable of such conduct as will constitute contributory negligence, and the court may so declare as a matter of law * *
The reason behind the rule seems to be that “a child under 7 years of age lacks the discretion, judgment- and mental capacity to discern and appreciate circumstances of danger that threaten its safety.”
Arrayed against the proponents of the "Illinois Rule” are those jurisdictions which have rejected the claim that some arbitrary age, such as four, five, six or seven, should be set below which a child must be conclusively presumed to be incapable of contributory negligence.
They recognize the presumption of incapacity but regard it as one which is rebuttable. Common sense is on their side for it dictates that there aré other factors besides a child’s age, e. g., judgment and experience, which must bp considered in order to properly determine the child’s capacity for contributory negligence. As stated by Judge Jayne in Hellstern v. Smelowitz:
“It seems entirely reasonable to su'pr pose that the capacity of an infant to understand and to avoid dangers to which it is exposed in a given set of circumstances does not depend so much upon the chronological age of the infant as upon the infant’s psychological development.”
“The ripening of the mental faculties of children in general must, we think, have been accelerated by the progressive enlargement of a child’s scope of observations and experiences in our modern environment.”
“Under the so-called Illinois rule a boy who is one day under seven years of age may be guilty of the most flagrant contributory carelessness and yet evidence of his exceptional precocity and breadth of judgment and experience cannot be introduced to over
come the illusory presumption of baby like puerility.”
We reject the Illinois rule of conclusive presumption and adopt for Alaska the view that a child of less than seven years of age is rebuttably presumed to be incapable of contributory negligence. As to such a child there are two issues to be decided: (1) Whether the child has the capacity to be contributorily negligent, and (2)whether he was in fact contributorily negligent. These issues might well both be jury questions unless fair minded men in the exercise of reasonable judgment could not differ on the inferences to be drawn from the evidence.
With respect to the first issue mentioned in the preceding paragraph, the evidence in the instant case was such as- to leave no doubt in a reasonable mind that the child was capable of some degree of care and of taking some precautions for. his own safety. He knew the danger from automobiles and had been warned by his parents to watch out for vehicles and not to play in the streets. Under these circumstances the trial court would have had to rule as a matter of law that the child was capable of contributory negligence,
leaving for the jury only the issue of whether he was in fact contributorily negligent.
The trial court properly defined ordinary care as applicable to the child in this case by instructing the jury that
“A child is guilty of contributory negligence when he docs something which an ordinary child of like age, intelligence, and experience would not do under the circumstances and conditions of a given case, or when he fails to take such precautions for his own safety as an ordinarily prudent child of like age, intelligence, and experience would take under the same circumstances and conditions. * * * ”
During the course of the trial the plaintiff called as a witness one Donald Redman who testified that immediately preceding the accident he saw the child playing — “walking with one foot on the sidewalk or curb and one down off the curb into the street” — and then stumbling out into the street and falling into or coming into contact with the right front fender of the defendant’s car. Redman was then shown an unsworn written statement made by him one week after the accident to Air Force Police officers investigating the accident
from which the following portion was read into the record:
' “I saw Mrs. Cushmans [jic] [defendant’s] car driving less than three feet from the curb where this little boy was walking ‘up and down’. I saw her car strike the child. I do not know whether her right front bumper struck the child, or whether her right front fender struck the child, but I do know that T saw the right front corner of the car strike the boy * *
.The witness readily admitted making the statement and explained that in it he had failed to say how the boy got off the curb. On cross examination he identified an earlier written statement, given by him to the Air Force Police only one day after the accident, in which he related:
“I was following the car involved in accident, she [the defendant, Helen Cushman] was traveling about 15 MPH when this small boy stumbled and fell from curb into the car. The boy was walking with one foot on curb and other foot in gutter when he stumbled and fell into on coming traffic; the car had no way of avoiding the accident.”
The plaintiff tried twice but without success to get admitted into evidence as a prior inconsistent statement, the written statement made by the witness Redman six days after the accident. The defendants objected to the admission of the statement on the grounds that “the witness is the best evidence,” that he “testified as to what he actually observed” and that the statement did not add or detract from anything explained by his testimony. The plaintiff contends that the statement was admissible for purposes of impeachment and that it was error for the court to exclude it. We do not think so.
Redman admitted making the statements contained in the writing in question. That ended the inquiry. The material portions of the statement had been read to the jury, leaving no need for further proof on the subject.
The written statement would not have contradicted Redman any more than his admission had already done.
The third issue raised by the plaintiff is that the trial court erred in giving its instruction No. 7 which reads:
“In the present action certain testimony [of the witness Owczarski, who was apparently unavailable at the time of trial] had been read to you by way of deposition.
“You are instructed that you are not to discount this testimony for the sole reason that it comes to you in the form of a deposition. It is entitled to the same consideration, the same rebut-table presumption, that the witness speaks the truth, and the same judgment on your part with reference to its weight, as is the testimony of witnesses who have confronted you from the witness stand.”
The plaintiff argues that the instruction was erroneous because it overlooked the value attached to a witness’ demeanor in court and in effect told the jury that they should give the same weight to evidence pro-' duced by deposition as they would to evidence coming from the witness testifying in open court. The defendants reply that this is not so, for the instruction merely directed the jurors that they must in weighing the testimony of a witness from the stand apply their individual judgment to the value of his testimony and demeanor and that they must apply no less amount of judgment to the testimony of a witness presented by way of deposition. We consider the defendants’ interpretation of the instruction to be correct and one that any reasonably intelligent jury would have made.
This instruction coupled with the other instructions given by the court for
judging the credibility of witnesses left to the jury alone the determination of how much weight and credibility should be attached to the testimony of the several witnesses, whether testifying orally or by deposition.
A second objection of the plaintiff to instruction No. 7 is that it amounts to a comment by the trial court upon the weight of the evidence and, therefore, violates Civil Rule 51(b) set forth in the margin.
We fail to read any such meaning,into the instruction as given. If the court had instructed the jury that they must give the same weight to deposition evidence as to oral testimony by a witness in open court, the plaintiff might have had cause for complaint.
For his next major issue the plaintiff has mingled, four specifications of error and treated them under the single charge that the trial court committed prejudicial error by failing to instruct the jury concerning the standard of care owed by the defendant Helen Cushman to the plaintiff’s minor child.
The plaintiff contends that, since it was established at the trial that children were playing in the area of the accident at the time it occurred,
the court should have instructed the jury that where children are known or may be reasonably expected to be in the vicinity, the driver of a car must exercise greater care for the protection of such children than would be required of him in the case of persons of mature years.
While there are decisions which hold that a higher degree of care is required toward children than toward adults,
we believe that the better view is that expressed by Dean Prosser as follows:
“Although the language used by the Courts sometimes seems to indicate that a special standard is being applied, it would appear that none of these cases should logically call for any departure from the usual formula. What is required is merely the conduct of the reasonable man of ordinary prudence under the circumstances, and the greater danger, or the greater responsibility, is merely one of the circumstances, demanding a greater amount of care.
”
Under this view that there are no degrees of care as a matter of law and in the absence of any statute to the contrary, the trial judge need only instruct the jury that the defendant is Required to exercise toward the plaintiff ordinary care under the
circumstances.
By its instruction No. IS the trial court informed the jury:
“In order to exercise ordinary care one must employ his faculties in order to observe and discover the danger, if the danger is visible and obvious, or if the surrounding circumstances and conditions are such as to indicate the presence of danger to a reasonable or ordinarily careful and prudent man, and a failure to discover such visible and obvious danger, when their attention is expected or should be given to the road ahead, amounts to the want of ordinary care.
“Every driver is under obligation to provide against all such dangers to others as he, under the circumstances, ought reasonably to expect might probably arise.
“Independently of any other rule or statute, it is the duty of every motor vehicle operator to keep a careful lookout ahead and to the sides in order to see any other traveler or vehicle which may be within or approaching his line of travel, and it is his duty to take all reasonable care and precaution to avoid collision with any other traveler or vehicle, and to that end to limit his rate of speed and so control the movement of his vehicle that he is not likely to endanger and does not endanger thc property, life, or limb of any person.”
The foregoing instruction was preceded by instruction No. 12 which defined negligence and ordinary care as those terms applied to the defendant.
We find that these two instructions provided the jury with a sufficient test for negligence under the facts of this ease. The record discloses that from the time that counsel for the parties made their opening statements and thenceforth throughout the entire trial, the jury was made fully aware that the ease involved a six-year old child playing on the street when the accident occurred and that children because of their impulsive tendencies create a dangerous situation when playing in the area along a highway where vehicles travel. To have made special mention of these circumstances in the instructions would have accomplished no useful purpose in this ease.
Along with its instructions, the court asked the jury to answer the following special interrogatories, which were answered as indicated:
“1. Was the plaintiff Wil-bern David Patterson guilty of contributory negligence? Yes
(Yes or No)
“2. Was the defendant guilty of negligence? No
(Yes or No)
“3. If you find the defendant guilty of negligence, was that negligence the proximate cause of the injury received by the plaintiff? -
(Yes or No)”
This brings us to the next question raised by the plaintiff, which is: Having elected to submit the foregoing interrogatories to the jury, did the trial court err in refusing to submit certain additional interrogatories requested by the plaintiff? One of the requested interrogatories was in three parts as follows:
“(A) Did Mrs. Cushman fail to keep a proper lookout for children on April 28, 1962, just prior to the accident?
“(B) If your answer to the previous interrogatory is in the affirmative, do you find that her failure to keep a proper lookout for children was a proximate cause of the plaintiff's injury?
“(C) If your answer to previous interrogatory is in the affirmative, in what amount has the plaintiff been damaged ?”
The plaintiff also requested that the jury be asked to answer the interrogatory, “Was the six year old Plaintiff, WILBERN DAVID PATTERSON, capable of being negligent on April 28, 1962?”
The plaintiff contends that, since he had attempted to prove that the defendant, Helen Cushman, had failed to maintain a proper lookout and that the injured child was incapable of negligence due to his tender years, those issues were determinative of the ultimate questions of primary and contributory negligence in this case and should have been submitted to the jury by way of special interrogatories. By the court’s failure to give the requested instructions, the plaintiff claims, the jury’s answers to the interrogatories given became immaterial and, more important, the theory of the plaintiff’s case was never submitted to the jury and there was no way of telling whether or not the general verdict resulted from the jury’s disobedience to the court’s instructions.
Our Civil Rule 49(c), like Rule 49(b) of the Federal Rules of Civil Procedure, provides that a general verdict
may
be accompanied by interrogatories
upon one or more issues
of fact, the decision of which is necessary to a verdict.
The number
and form of the interrogatories rested in the sound discretion of the trial judge. We cannot say that he abused his discretion or committed error, for in our opinion he presented to the jury fairly the issue as to liability by the three interrogatories which he elected to submit and by his instructions 13-A and 15 regarding the child’s capacity and the duty of a' motorist to maintain a proper lookout.
At the conclusion of all the evidence the plaintiff moved for a directed verdict on the ground that as a matter of law the evidence demonstrated beyond any reasonable doubt that the defendant, Helen Cushman, was negligent in failing to keep a proper lookout. As a second ground for his motion, he urged that the child in the case being under seven years of age was conclusively presumed, as a matter of law, to be incapable of negligence' or, in the alternative, that, if the presumption of incapacity is held to be rebuttable, the presumption had not been overcome in this case. After the jury had brought in the verdict for the defendant, the plaintiff moved for judgment notwithstanding the verdict. ■ Both motions were denied and the plaintiff charges this as error but relics only on the first ground urged below in support of the two motions directed at the verdict.
In his brief on appeal the plaintiff has marshalled eight facts from which, he alleges, the court should have concluded that Heleti Cushman did not maintain a proper lookout for the child involved and was thereby negligent as a matter of law. Even though these facts, which are set forth in the margin below,
were undisputed, as the plaintiff claims, they were not disposi-tive of the issue of primary negligence, for there still remained the element of proximate cause.
The child testified that the car hit him as he was walking along with one foot on the curb and one foot on the street. The only two eye witnesses to the accident, however, testified that the child, hopping along with one foot on the curb and one foot in the street, lost his balance when the one foot missed the curb, stumbled and fell into the side of the right front fender of the defendant’s car which was traveling at about fifteen miles per hour about three to four feet out from the curb. Helen Cushman herself stated that she had no knowledge of the child’s presence until she heard a “real sharp thud” on the right hand side of her
car. She stopped the car, got out and went hack around the car where she found the injured child lying with his feet by the rear fender.
Under such a state of the record, it cannot be said that the probative facts as to Helen Cushman’s negligence, assuming that the jury’s finding that she was not negligent is incorrect, being the proximate cause of the accident are undisputed and that reasonable minds could draw but one inference from them. The issue here turned on controverted facts and the credibility of witnesses and was properly left to the jury to decide.
Lastly, the plaintiff charges that the trial court erred in awarding court costs to the defendants. The factual situation in that respect as to events transpiring in 1963 is this: The verdict of the jury was docketed on February 1, without any direction by the court as to the entry of a judgment. On February 5 the defendants as the prevailing party filed their cost bill, dated February 1,. which was noticed for hearing and heard before the clerk of the court on February 6. The plaintiff objected to the cost bill on several grounds, whereupon the defendants withdrew their cost bill and decided to submit another one at a later date.
On February 8, after hearing oral argument by counsel on the subject of attorney’s fees, the trial judge allowed such fees in favor of the defendants, directing that a judgment be prepared accordingly and indicating that he would sign and have it entered that very day. A formal judgment was duly submitted by the defendants, approved as to form by counsel for the plaintiff, and filed. It reads in pertinent part as follows:
“IT IS ORDERED, that the plaintiffs take nothing, that the action is dismissed on the merits, and that the defendants recover from the plaintiffs, Wilbern B. Patterson and Wilbern David Patterson [the minor],
their costs
and attorneys fees in the amount of $875.00 and recover from the plaintiff, Mary Beth Patterson [the minor’s mother], attorneys fees in the amount of $25.00.” [Emphasis supplied.]
On February 15, the defendants served and filed a second cost bill for $373.12, covering such items as service fees, witness fees, and charges for reporting and transcribing depositions. These claimed costs were objected to by the plaintiff on the ground that they had been waived by the form of judgment submitted to the court for execution on February 8 and on the further ground that the bill had not been timely served and filed. As to the latter ground, the plaintiff pointed out that Civil Rule 79(a) requires that a party entitled to costs shall serve a cost bill on the other party “[w]ithin 10 days after the entry of judgment.” He then argued that the general verdict constituted the judgment is this case and having been docketed on February 1, it caused the service and filing of the February 15 cost bill to be untimely.
On March 26 the clerk of the court taxed the costs in the amount of $257.72. That amount was thereafter approved by the trial court and included in an “Amended Judgment on General Verdict” executed and filed on April 18, pursuant to hearing on a motion of the defendants, filed on April 3 under Civil Rule 60(b),
for relief from the judgment entered on February 8. Relief from the prior judgment was sought for the reason that plaintiff’s counsel had inadvertently included the word “costs” in the judgment and
failed to leave a blank space for the insertion of costs to be later taxed.
.In the meantime, on March 8 with all parties represented, the court had held a hearing on the plaintiff’s motion for judgment notwithstanding the verdict and in the alternative for a new trial. The motion was denied on March 8 at the conclusion of the hearing, and on March 13 the plaintiff filed notice of appeal from the judgment of February 8 and the order last mentioned.
Preliminarily to sustaining the costs as allowed by the clerk, the trial court had stated from the bench:
“[T]he records show that the jury returned their verdict in open court on February the 1st. The court has listened to the transcription of the testimony and the court at that time did not enter an order staying the entry of the judgment until the formal judgment was entered; therefore under the ruling of the Supreme Court
the [trial] court * * * is going to hold that the judgment was entered on February the 1st, that the filing of cost bill by the defendant in this case was timely, that since the record indicates no adverse ruling to the defendant by the Clerk on the first cost bill, although another more comprehensive one is filed on the 14th, the court in the absence of any ruling by the Clerk is going to find that it was timely filed. Now the court will hear argument as to the items.”
The plaintiff concedes that a good argument can be made that the judgment was really entered in this case on February 8. However, he contends that, if the' trial judge correctly interpreted our decision in Vogt v. Winbauer
to mean that entry of the verdict in the civil docket* on February 1 was tantamount to entry of judgment on the verdict, then the cost bill of February 15 was filed too late under, the ten-day rule and should have been, disallowed. In this connection the plaintiff maintains that the second cost bill cannot be treated as an amendment of the cost bill filed on February 5, because the latter was withdrawn by the defendants.
The record does not disclose .the exact wording of the clerk’s entry in the civil docket on February 1 ’ regarding the verdict. However, we do not consider that important here, because in the instant case the jury returned a general verdict accompanied by answers to interrogatories. In such a situation the following provision contained in Civil Rule 58 is controlling:
“[T]he court shall
direct the appropriate judgment to be entered
upon a special verdict or
upon a general verdict accompanied by answers to interrogatories
returned by a jury pursuant to Rule 49.” [Emphasis supplied.]
Since the court gave no directions on February 1 for the entry of a judgment on the general verdict and answers to interrogatories returned by the jury but waited until February 8 to perform that act by directing that a formal judgment be prepared, executed and entered as of the latter date, we conclude that the formal judgment docketed on February 8 marked the commencement of the ten-day period for the service and filing of a cost bill
and, therefore, the bill filed on February IS was timely.
The plaintiff objects to certain items taxed as costs in the cost bill filed on February 15 but cites us to no authority in support of his position. Wc have examined the bill and the affidavit attached thereto and have considered the items allowed by the clerk and later confirmed by the trial judge. Wc find that the cost bill was submitted in proper form and we perceive no error in the rulings below on the items taxed to which objection has been made.
Finally in connection with the controversy over the allowance of costs in this case, the plaintiff contends that the trial court erred in entering the April 18 amended judgment on the general verdict, after the appeal had already been docketed in the state supreme court. As noted earlier the defendants claimed relief from the judgment of February S because their counsel had inadvertently and by mistake included therein the word “costs” instead of leaving a blank space for the insertion of costs to be later taxed.
The relief thus sought is provided for by Civil Rule 60(a) which reads:
“Clerical mistakes in judgments, orders or other parts of the record and
errors therein arising from oversight or omission
may be corrected by the court at any time of its own initiative or on the motion of any party * * *. During the pendency of an appeal or. petition for review to the supreme court,
such mistakes may be so corrected before the record is filed in the súfreme court,-
and thereafter may be so corrected with leave of the supreme court.” [Emphasis added.]
While notice of appeal in this case was filed on March 13, 1963, the record on appeal was not filed in the supreme court until January 7, 1964. So on April 18, 1963, when the trial court entered the amended judgment in this case, it still had the authority to do so without leave of the supreme court.
Finding no'error, we affirm the judgment as amended.