Taylor v. Bergeron

449 P.2d 147, 252 Or. 247, 1969 Ore. LEXIS 508

• Court: Oregon Supreme Court
• Decided: January 15, 1969
• Status: Published

Opinions

GOODWIN, J.

Plaintiff, a child who was injured by an automobile, appeals from a judgment for the defendant entered pursuant to a jury verdict. The assignments of error all challenge the submission to the jury of the issue of contributory negligence.

At the time of the accident in question, the plaintiff was five years, nine months, and ten days old. The defendant saw the plaintiff standing in the street when the defendant was between 150 and 200 feet away from the plaintiff. The plaintiff was talking to another child and had his back to the defendant. When the defendant was about 100 feet from the plaintiff, the defendant applied his brakes. “When the defendant was one or two car lengths from the plaintiff, the defendant sounded his horn. The plaintiff then ran across the street in front of the defendant’s vehicle and was injured.

The trial court submitted to the .jury the issue of the plaintiff’s contributory negligence as well as the issue of the defendant’s negligence. At every appropriate stage of the trial, the plaintiff sought rulings that would declare as a matter of law that the plaintiff was not chargeable with negligence. The plaintiff also asks this court to rule, as a matter of law, that no child of the age of six years or younger can be denied recovery in a personal-injury case by reason of contributory negligence.

This court is unanimously of the opinion that the question of contributory negligence in the case at bar was properly submitted to the jury. A majority of the court is also of the opinion that it is not necessary in this case to re-examine an earlier decision which alluded to the age of five as the age below which a child is not responsible for the consequences of his own conduct. In Macdonald v. O’Reilly, 45 Or 589, 78 P 753 (1904), we held that a child four and one-half years of age, as a matter of law, could not be barred by contributory negligence. We noted, in passing, that there were then many cases holding that children under five were incapable of negligence. The Macdonald decision subsequently has been cited as supporting the rule that a child of less than five years of age is incapable of negligence, although the cases have not required a square holding to that effect. See Oviatt v. Camarra, 210 Or 445, 311 P2d 746 (1957); Kudrna v. Adamski, 188 Or 396, 216 P2d 262, 16 ALR2d 1297 (1950).

Affirmed.