Toetschinger v. Ihnot

250 N.W.2d 204, 312 Minn. 59, 1977 Minn. LEXIS 1658

• Court: Supreme Court of Minnesota
• Decided: January 27, 1977
• Docket: 44574
• Status: Published

Opinions

Sheran, Chief Justice.

Appeal from a judgment of the district court of Ramsey County entered in favor of defendants following an action for damages caused by an automobile accident. .We affirm.

On Monday, April 3, 1972, at about 2:35 p. an., Paul Toetschinger, then 5 years and 8 months of age, sustained injuries when struck by an automobile owned by defendant Thomas Ihnot and operated with his permission and consent by his wife, defendant Candyce M. Ihnot. The collision occured near the “T” intersection where Eleventh Avenue in the Village of Maplewood meets White Bear Avenue, a protected thoroughfare. White Bear Avenue, a four-lane highway about 50 feet wide, extends in a northerly and southerly direction through the Village of Maple-wood. Eleventh Avenue extends from it in an easterly direction and, including a median strip, is about 80 feet wide. These streets are relatively straight and level near the area of the accident. There are no sidewalks at or near the intersection, and no crosswalk markings for pedestrians. A Montgomery Ward & Co. storage facility surrounded by a parking area is located below street level and to the south and west of the intersection. An entranceway leading to it branches off from White Bear Avenue at a point about 35 feet south of the south curb line of Eleventh Avenue extended. Except for a few houses located south of Eleventh Avenue and east of White Bear Avenue, there are no residential or other structures in the immediate area of the accident. At the time of the accident the concrete surface of White Bear Avenue was dry and the weather was not inclement.

As the Ihnot car approached the “T” intersection from the north in the easterly south-bound lane of White Bear Avenue, Paul Toetschinger was standing between his sisters, Anne and Mary, 11 and 10 years of age, in the grass near the east curb line of White Bear Avenue, about 20 feet south of the south curb line of Eleventh Avenue. Susan Wilke, a 9-year-old friend, was with them. They were returning to their home, situated southwest of the Montgomery Ward parking lot, from a shopping trip to a Target store located about 3 blocks east of White Bear Avenue. Laurie and Julie Johnson, 9 and 7 years of age, who went with them to the Target store, had crossed White Bear Avenue and, apparently, were proceeding into or down the entranceway to the Montgomery Ward parking area.

As defendant Candyce M. Ihnot, 23 years old at the time of the accident, approached from the north on White Bear Avenue, she was driving a 1965 Chevrolet Impala at a speed which she estimated to be about 35 miles per hour. She was in a posted 45-miles-per-hour zone. With her in the front seat were her sister, Jacqueline Gavin, an adult, and two infants. When they were about 80 to 100 feet north of the intersection, Mrs. Ihnot recognized that the four persons standing just to the east of the curb of White Bear Avenue and southeast of the intersection were children. The Johnson girls were not in sight. There were no cars parked in the area to obscure her vision and there were no distracting circumstances. Mrs. Ihnot’s reaction was to withdraw her foot from the gas pedal, but she did not otherwise change her course or brake her speed. The children appeared to be in a position of safety and she assumed that they would remain there. But, just as she entered the intersection, she observed Paul suddenly leave the other children, running head down toward the west side of White Bear Avenue. Mrs. Ihnot applied her brakes and attempted to turn the vehicle to her right. She brought her car to a stop facing in a southwesterly direction about 100 feet south of the north curb line of Eleventh Avenue extended, with all but the front right portion of it at rest in the more easterly portion of the southbound lane of White Bear Avenue. Seventy-three feet of tire marks were later, observed extending northerly from its front wheels where it had come to a stop. Just before she was able to bring her automobile to a stop, it collided with Paul Toetschinger near the point of juncture of its left front fender and its bumper. He fell to the street, where he was observed near the front left door of the car by Mrs. Ihnot after she had stopped and stepped from it to give him aid. His mouth was injured and he had sustained a fractured femur of his right leg.

The six-person jury returned a special verdict, finding that the accident was caused by the negligence of Paul Toetschinger to the extent of 80 percent and by the negligence of Candyce Ihnot to the extent of 20 percent. Paul’s damages were fixed at $2,500 and those of his mother at $6,600.

Post-trial motions were denied; judgment was entered for defendants, and this appeal was taken.

On this appeal it is contended:

(1) The finding of 80-percent negligence attributable to Paul Toetschinger cannot be sustained by the evidence;

(2) The trial court erred in giving the following instruction to the jury:

“A person confronted with an emergency through no negligence of his own, or her own, who, in an attempt to avoid the danger, does not choose the best or safest way is not negligent because of such choice unless the choice was so hazardous that a reasonable person would not have made it under like circumstances.”

(3) The trial court erred in failing to give an instruction specifically concerning knowledge of the presence .of children as a circumstance affecting the duty to use reasonable care;

(4) The trial court erred in failing to instruct the jury pursuant to Minn. St. 169.14, subd. 2, concerning maximum speed limits;

(5) The damages returned were insufficient as a matter of law.

Although Paul Toetschinger was only 5 years and 8 months of age at the time of the accident, his negligence was properly submitted to the jury by the trial court, which instructed :

“In the case of a child, reasonable care is that care which a reasonable child of the same age, intelligence, training and experience as Paul Toetschinger at the time of the accident would have used under like circumstances.”

The submission of the issue, and the instruction as given, accords with the uniform holding of this court. See, Rosvold v. Johnson, 284 Minn. 162, 169 N. W. 2d 598 (1969); Pelzer v. Lange, 254 Minn. 46, 93 N. W. 2d 666 (1958); Bruno v. Belmonte, 252 Minn. 497, 90 N. W. 2d 899 (1958); Watts v. Erickson, 244 Minn. 264, 69 N. W. 2d 626 (1955); Audette v. Lindahl, 231 Minn. 239, 42 N. W. 2d 717 (1950); Eckhardt v. Hanson, 196 Minn. 270, 264 N. W. 776, 107 A. L. R. 1 (1936).

Plaintiffs urge that under the Minnesota rule the defendant must establish the level of a child’s capacity as a precondition for the submission of the issue of contributory negligence. In this case, evidence was offered to show that Paul Toetschinger’s mental and physical characteristics were like those of other children, of his age, although he may have been more impulsive, immature and hyperactive than others. His experience with the dangers of traffic were limited, perhaps, but no more so than one would anticipate on the basis of his age. He had attended kindergarten but was apparently not considered ready for the first grade. We do not believe the situation to be different from that controlled by the authorities cited. We have given consideration to the advisability of adopting the rule, in force in some states, that children under the age of 7 years cannot be held contributorily negligent, and we have concluded that the rule to which we adhere has been so long and firmly established as to make abandonment of it at this time under the facts of this case inadvisable.

It is of course true, as stated in the dissenting opinion, that principles of stare decisis should not preclude changes which advance the administration of justice. But with respect to the problem before us, it is submitted that to reject our present rule concerning the contributory negligence of children in favor of an arbitrary declaration that children under the age of 7 years are incapable of exercising due care for their own safety would, in accordance with the analysis that follows, be unwise.

In Eckhardt v. Hanson, 196 Minn. 270, 272, 264 N. W. 776, 777, 107 A. L. R. 1, 2 (1936), the Illinois rule preferred by the dissenting opinion and the Massachusetts rule now in effect in this state were compared in this way:

“* * * Under the so-called Illinois rule (which is analogous to the common law rule with respect to the nonresponsibility of such young children for criminal acts), it is held that a child under seven is incapable of contributory negligence. * * * This rule has the merit of being easy to apply. However, it is arbitrary and always open to the objection that one day’s difference in age should not be the dividing line as to whether a child is capable of negligence or not. Courts following the Massachusetts rule hold that the question of contributory negligence of a child under seven years of age is for the jury under proper instructions. * * *

*****

“Under a proper instruction the Massachusetts rule is the more sound and the one most likely to insure just result. It does not cast upon the general public any and all risks that may be created by the carelessness of a child. Still it does not go so far as to hold a child to a degree of care not commensurate with its age and experience. Under present-day circumstances a child of six is permitted to assume many responsibilities. There is much opportunity for him to observe and thus become cognizant of the necessity for exercising some degree of care. Compulsory school attendance, the radio, the movies, and traffic conditions all tend to have this effect. Under the Illinois rule a child may be guilty of the most flagrant violation of duty and still not be precluded from recovering damages for injuries suffered partly because of such violation. The Massachusetts rule contemplates justice for all parties, irrespective of age. Jurors, by virtue of their office, are competent to judge whether or not a child has exercised a degree of care commensurate with its age, capacity, and understanding. The Illinois rule has no basis in sound reason or logic. It is based upon an outworn historical rule of criminal law which refused to acknowledge any capacity on the part of any child under seven years of age to distinguish between right and wrong.” (Italics supplied.)

In Squillace v. Village of Mountain Iron, 228 Minn. 8, 13, 26 N. W. 2d 197, 201 (1946), this court approved the following instruction with respect to the contributory negligence of a 6-year-old child:

“* * * Young people are not held to the same degree of care for their own safety as an adult person, but a child of six years of age is required to use some care for his own safety but is only held to the degree of care that is commonly used by children of like age and capacity.”

In Audette v. Lindahl, 231 Minn. 239, 242, 42 N. W. 2d 717, 719 (1950), the authority of the trial court to decline to submit the issue of contributory negligence of a 5-year-old child to the jury in a proper case was recognized when we said:

“* * * Of course, the facts of a particular case, unlike those here, may preclude the submission of an issue of contributory negligence.”

And in Watts v. Erickson, 244 Minn. 264, 269, note 2, 69 N. W. 2d 626, 629, note 1 (1955), we added:

“ ‘* * * A child may be so young as to be manifestly incapable of exercising any of those qualities' of attention, intelligence and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character.’ Restatement, Torts, § 283, comment e.”

Although scholars are not in agreement on the question,¹ the authorities generally considered particularly reliable by this court have indicated that the rule now in effect in Minnesota is to be preferred to the rule favored in the dissenting opinion. In Prosser, Torts (4 ed.), § 32, we find this statement:

“Some courts have attempted to fix a minimum age, below which the child is held to be incapable of all negligence. * * * Below the age of seven, the child is arbitrarily held to be incapable of any negligence * * *. The great majority of the courts have rejected any such fixed and arbitrary rules of delimitation, and have held that children well under the age of seven can be capable of some negligent conduct. Undoubtedly there is an irreducible minimum, probably somewhere in the neighborhood of four years of age, but it ought not to be fixed by rules laid down in advance without regard to the particular case. As the age decreases, there are simply fewer possibilities of negligence, until finally, at some indeterminate point, there are none at all.”

In 2 Harper and James, Torts, § 16.8, it states:

“The question of how old a child may be and yet have his immaturity considered does not give much trouble under the prevailing American doctrine which treats the matter as. one of degree to be worked out in each case where the plaintiff is technically a minor under its individual circumstances. While theoretically there is no age at which contributory negligence is impossible, the universal view is to set an age below which a child is held to he incapable of contributory negligence. The great majority of states have established three as the age below which they will not allow; consideration of contributory negligence. Above that age, the general formula is kept flexible. Some states, however, have adopted rules of thumb * * *. In these states, children under seven are conclusively presumed to be incapable of contributory negligence * * *. Such a rule seems pretty mechanical and arbitrary.”

Finally, Restatement, Torts 2d, § 283 A, comment b, reads in part:

“* * * Some courts have endeavored to lay down fixed rules as to a minimum age below which the child is incapable of being negligent * * *. The prevailing view is that in tort cases no such arbitrary limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found; but with the great variation in the capacities of children and the situations which may arise, it cannot be fixed definitely for all cases.”

Social changes since the rule with respect to contributory negligence of young children was first adopted in Minnesota are supr portive of the rule. In Eckhardt v. Hanson, supra, decided in 1936, this court, in rejecting the Illinois rule as one derived from an ancient and improvident analogy to the common law of crimes, considered the Massachusetts rule to be more consistent with conditions of modern-day life. The opinion states (196 Minn. 274, 264 N. W. 778, 107 A. L. R. 4):

“* * * Under present-day circumstances a child of six is permitted to assume many responsibilities. There is much opportunity for him to observe and thus become cognizant of the necessity for exercising some degree of care. Compulsory school attendance, the radio, the movies, and traffic conditions all tend to have this effect.”

In the 41 years which have elapsed since the Eckhardt decision was written, the exposure of young children to the hazards of daily living and to the opportunities for instruction has been increased by such developments as preschool instruction and kindergarten; television; the proliferation of toys, including toy vehicles designed for the enjoyment of children under the age of 7; and games. To our mind, it is not accurate to say that young children are less alert to and less trained concerning many dangers which they face today than they were at the time of Eckhardt.

Concern for the interests of children of tender years underlies, to some extent at least, the decisions of courts which prefer the Illinois rule. But, under the rule as we employ it in Minnesota, the likelihood of unfairness in the application of the Massachusetts rule seems remote. The trial judge, who has the opportunity of observing the situation firsthand, can direct that the child involved, because of tender years, inexperience, or the subtleties of the danger to be apprehended, cannot be held to be contributorily negligent under the circumstances of the given case. This authority and responsibility on the part of the trial judge has 'been recognized in our decisions.² And when the case is submitted to the jury, it is to be made clear, as it was in this case, that the degree of care expected of a child is that commensurate with the age, mental capacity, and understanding of children of similar age acting under similar circumstances. See, 4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides (2 ed.) JIG II 104 G-S. This is a matter which jurors chosen from the community generally are particularly well able to assess. The natural sympathy and concern of jurors for children of tender years will make it unlikely in the ordinary case that a jury — advised of the impact of its determination of comparative fault³ — will return a verdict precluding any recovery by the injured child.

Finally, the implicit premise of the Illinois rule, i. e., that children are unable to exercise due care for their own safety before reaching the age of 7, simply does not square with the way responsible people manage their affairs and those of their families in Minnesota today. We know it to be a fact that conscientious parents permit their children 5 and 6 years of age to play on sidewalks proximate to streets carrying vehicular traffic and to walk to places such as schools and stores without adult supervision and protection. If it be true that children of this age have no capacity whatever to appreciate and avoid the risks of vehicular traffic, concerned parents, best able to judge the capacity of their children, would not permit what we know to be the common practice. In this situation, the Massachusetts rule appears more consistent with the way ordinary, reasonable people conduct themselves than does the Illinois rule, which says in effect that no child under the age of 7 is able to know or appreciate danger.

A rule which arbitrarily eliminates contributory negligence as a defense either in whole or in part where the plaintiff is a child under the age of 7 makes possible gross unfairness with respect to a defendant charged with fault for an accident resulting in injury to a child of tender years. For example, if on the date of the accident the child has lived 6 years and 364 days, the defendant is held responsible for all of the damage, no matter how minimal his negligence. But if the child has reached his seventh birthday, the negligence of the plaintiff and the defendant are compared and the defendant, depending upon how serious his lapse was from the standard of reasonable care, is relieved in whole or in part from responsibility. The outcome of litigation should not be permitted to depend on such a fortuitous circumstance as age alone.

The claim of error founded upon the giving of the emergency rule is based on the opinion of this court in Kachman v. Blosberg, 251 Minn. 224, 87 N. W. 2d 687 (1958). The difference between that case and this one lies in the fact that there the defendant became aware of the “emergency” resulting from the child’s presence in the street when he was 300 feet distant from the point of impact. In this case, according to the evidence construed in the light most favorable to the defendants, Mrs. Ihnot was not aware that Paul had darted into the street until she reached the intersection, at which time she immediately applied her brakes, proceeding almost directly forward until she came to a stop within a few feet of contact. We believe that if the jury accepted this version of the facts, there was an emergency created by the impulsive act of the child, and the instruction was justified.

The trial court declined to give the following requested instruction (4 Hetland & Adamson, Minnesota Practice, Jury Instruction Guides [2 ed.] JIG II 103 G-S.):

“Where a person (knows) (has reason to know) that children are likely to be in the vicinity, the greater hazard created by their presence (or probable presence) is a circumstance to be considered in determining whether reasonable care was used. sjc $

There was no evidence in this case that the defendant knew or should have known that children were any more likely to be in the vicinity of this intersection than they were likely to be in the vicinity of any other of like character. White Bear Avenue is a “through-stop” highway. There are no schools or playgrounds located near it. There was no testimony indicating that the presence of children was to have been anticipated. The absence of a crosswalk leading from the east side of White Bear Avenue to its west side at the intersection has negative implications. There are no streets or other places attractive to children in the immediate vicinity of the accident. The Montgomery Ward facility situated to the southwest of the intersection is not open to the public and the parking area near it is for the convenience of its employees or others having specific business there. The situation, therefore, is not one calling for a special degree of alertness in anticipation of the presence of small children. See, Kachman v. Blosberg, supra; Van Asch v. Rutili, 286 Minn. 9, 174 N. W. 2d 101 (1970); Knox v. City of Granite Falls, 245 Minn. 11, 72 N. W. 2d 67 (1955); Shawley v. Husman, 247 Minn. 510, 78 N. W. 2d 60 (1956).

We believe that the instructions given by the trial court with respect to the matter of speed were adequate. It is agreed that the zone in which defendant was driving was a 45-miles-per-hour speed zone. In addition to instructing the jury that the driver of a motor vehicle is under a duty to keep it under reasonable control, the trial judge made specific reference to these applicable sections of the Minnesota Highway Traffic Regulation Act:

“Minnesota Statute 169.14, entitled ‘Speed Restrictions’, at subdivision 1, reads:

“ ‘Basic rule. No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. In every event speed shall be so restricted as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.’

“Subdivision 3 of the same section reads in part: It starts off: ‘Reduced speed required. The driver of any vehicle shall, consistent with the requirements, drive at an appropriate reduced speed when approaching and crossing an intersection when special hazards exist with respect to pedestrians.’

“You are instructed that the mere presence of an intersection, although it bespeaks precaution, does not require an approaching motorist possessed of the right of way to drive at an appropriate reduced speed unless and until special hazards exist on or about such intersection with respect to pedestrians.”

The trial court, although requested to do so, did not read § 169.14, subd. 2, which is as follows:

“Where no special hazard exists the following speeds shall be lawful, but any speeds in excess of such limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful; except that the speed limit within any municipality shall be a maximum limit and any speed in excess thereof shall be unlawful:

“(1) 30 miles per hour in an urban district;

“(2) 65 miles per hour in other locations during the daytime;

“(3) 55 miles per hour in such other locations during the nighttime.

“ ‘Daytime’ means from a half hour before sunrise to a half hour after sunset, except at any time when due to weather or other conditions there is not suffiicent light to render clearly discernible persons and vehicles at a distance of 500 feet. ‘Nighttime’ means at any other hour or at any time when due to weather or other conditions there is not sufficient light to render clearly discernible persons and vehicles at a distance of 500 feet.”

This subdivision of the section has no application in view of the fact that there was a properly posted speed limit of 45 miles per hour at the accident site. Apart from this, the claim that the speed of the Ihnot vehicle exceeded 45 miles per hour is at best speculative.⁴

Our conclusion is to affirm the determination of the trial court. We do so upon the ground that the jury’s finding with respect to the contributory negligence of Paul Toetschinger is sustained by the evidence. It could be persuasively argued that, under the unusual facts of this case, defendant Candyce M. Ihnot exercised reasonable care under the circumstances as a matter of law. In her effort to avoid colliding with the young boy running precipitately into the highway, she appears to have done everything that could reasonably be expected of her, under the circumstances.

Given our conclusion on the question of liability, it becomes unnecessary for us to consider the adequacy of the amount fixed by the jury as damages sustained by plaintiffs.

Affirmed.

1 See, Verni v. Johnson, 295 N. Y. 436, 68 N. E. 2d 431 (1946); Benning v. Schlemmer, 57 Ohio App. 457, 14 N. E. 2d 941 (1937); Keet, Contributory Negligence of Children, 12 Cleveland-Marshall L. Rev. 395; Starnes, Contributory Negligence .of a Minor as a Matter of Law in Missouri, 1959 Wash. U. L. Q. 281; Wilderman, Presumptions Existing in Favor of the Infant in Re: The IQuestion of an Infant’s 'Ability to be Guilty of Contributory Negligence, 10 Ind. L. J. 427; Wilkens, Contributory Negligence of Very Young Children, 20 Cleveland St. L. Rev. 65; Note, 34 Ind. L. J. 511; Note, 22 N. Y. U. L. Q. Rev. 131; Note, (18 S. C. L. Rev. 648.

2 See, Capriotti v. Beck, 264 Minn. 39, 117 N. W. 2d 563 (1962); Watts v. Erickson, 244 Minn. 264, 69 N. W. 2d 626 (1955); Thomsen v. Reibel, 212 Minn. 83, 2 N. W. 2d 567 (1942); Decker v. Itasca Paper Co. 111 Minn. 439, 127 N. W. 183 (1910),

3 Rule 49.01(2), Rules of Civil Procedure, provides as follows: “In actions involving Minn. Stat. 1971, Sec. 604.01 [comparative negligence law], the court shall inform the jury of the effect of its answers to the percentage of negligence question and shall permit counsel to comment thereon, unless the court is of the opinion that doubtful or unresolved questions of law, or complex issues of law or fact are involved, which may render such instruction or comment erroneous, misleading or confusing to the jury.”

4 An expert witness called by plaintiffs expressed the opinion that the Ihnot car, after Mrs. Ihnot withdrew pressure from the gas pedal, was moving at a speed of 43 miles per hour when the brakes were applied. The opinion was based upon the “coefficient of friction.”