Loking, Chief Justice.
Action for wrongful death of Kobert Warning, a minor. The trial court directed a verdict for defendants. This is an appeal from the order denying plaintiffs’ motion for a new trial.
The accident occurred on state highway No. 65, between the decedent, aged 10% years, and a truck owned by defendant association and driven by its employe, the defendant Joseph Fafrowicz. Decedent, riding a bicycle down a private driveway, crossed the highway into the path of the truck, and was struck by it and killed.
On the morning of Máy 3, 1947, Kobert Warning borrowed a friend’s bicycle and, together with Donald Anderson, a playmate aged 11, went riding in the neighborhood of Kobert’s home on the outskirts of the village of Mora, Minnesota. State highway No. 65 extends in a north-south direction, passing the Warning home to the west. It is a heavily traveled arterial highway, about 32 feet wide, with guardrails on both sides at the point where the accident occurred. There is also a gradual upgrade on highway No. 65 to the north, the top of the hill being about a quarter of a mile from the scene of the accident.
At first the boys went north toward the Harlan place, then turned back and went up the Hoffert driveway to look at some forts which they had built in the woods near the Hoffert place. This driveway is about 200 feet south of the Warning residence [295]*295on the same side of the highway. It is made of sand and gravel and goes up an incline. (There is no stop sign thereon protecting the highway.) Because of the upgrade and the sand on the driveway to the Hoffert place, the two boys got off their bicycles and walked part of the way. After looking at the forts, they started down the hill. Donald preceded Robert by a short distance. As he approached highway No. 65, he slowed down by dragging his feet, because his bicycle did not have brakes, and made the turn north up the east side of the highway. As he stopped, he saw defendant’s truck coming down the hill from the north and shouted to Robert, who had not yet reached the highway, “Look out. Here comes a truck.” Robert immediately put his feet down and began to drag them on the driveway. He did not use his brakes. Because -he was moving too fast to turn, as Donald had done, he went across to the west side of the highway and into the path of the truck, which Fafrowicz had swung toward the guardrails to avoid a collision. The truck hit the guardrails and decedent at about the same instant.
We are not concerned on this appeal with the negligence of the driver. Fafrowicz, which was clearly established because of excessive speed and defective brakes. The sole issue is whether decedent was guilty of contributory negligence as a matter of law.
Decendent’s act in entering the highway from the private driveway without yielding the right of way to defendant’s truck and his act in riding to the west side of highway No. 65 were in violation of M. S. A. 169.20, subd. 4, and 169.18, subd. 1, respectively. A violation of the traffic act is prima facie evidence of negligence (§ 169.96) which, if not rebutted, is conclusive. Olson v. D. M. & I. R. Ry. Co. 213 Minn. 106, 5 N. W. (2d) 492; Lee v. Molter, 227 Minn. 557, 35 N. W. (2d) 801.
In the case at bar, the evidence did not reveal sufficient facts justifying decedent’s violation of either statute to warrant submitting the case to the jury. Although Fafrowicz stated at the coroner’s inquest that he tried to straddle the two boys, his ex[296]*296planation of this statement at the trial shows that he did. not turn toward the direction in which they were coming. Hence, he could not have confused or misled decedent into believing that his only means of escaping injury was to cross to the west side of the highway. On cross-examination, Fafrowicz stated:
“Q. Was that question asked of you and did you answer ‘Headed the same way but he couldn’t make the turn so he came on my side. At first I tried to straddle him but it was so close I swung to the right.’ Do you remember answering that question?
“A. Yes, sir.
“Q. Making that statement. What do you mean by saying that you tried to straddle him?
“A. I suppose I was trying to go on the other side of' him, let him get across. That was my point there.
“Q. You mean by straddling him—
“A. The two boys — straddle the two boys. That was my point.
“Q. You mean you intended to go between the two boys.
“A. That is what I was figuring on doing but after it was so close I just swung over to my right.
“Q. You meant first to turn to the left and instead you turned to the right.
“A. Yes, sir.
“Q. You had time to think about whether you wanted to straddle them or not, didn’t you?
“A. I don’t know no more.
“Q. Well, you thought about it, didn’t you?
“A. A person is a pretty fast—
“Q. But not fast enough sometime.
“A. That is it.
“Q. By saying you meant to straddle the boys to get into clear did you mean you intended to turn to the left and go between the two boys?
“A. Yes, sir.
“Q. And you, saw you couldm/t do it so you swung to the right.
[297]*297“A. Yes.
“Q. What prevented you from turning to your left?
“A. The other toy was on the left.” (Italics supplied.)
This testimony and other evidence makes it clear that Fafrowicz did not turn to his left. He said that he intended to do so but saw that he could not because the Anderson boy was on the left. Charles Cooper, a witness for plaintiffs, who was driving a car behind Fafrowicz, testified that defendant driver did not swerve. Thus, Fafrowicz’s statement that he tried to straddle deceased, when viewed in the light of his explanation of what he meant and Cooper’s testimony that he did not swerve, does not afford a basis for the conclusion that there were facts which may have justified deceased in believing that his only escape from danger was to cross to the west side of the highway. Since there was no showing of justification for the violation of either statute, there was no case to go to the jury (Demmer v. Grunke, 280 Minn. 188, 42 N. W. [2d] 1), unless, because of his age, his capacity to exercise care should have been submitted to it.
The evidence shows that the reason why Robert failed to yield the right of way to the truck was either because he failed to keep a proper lookout and to heed Donald Anderson’s warning or, if he did see the truck, because he failed to use the knowledge which his senses gave him. Cf. Carlson v. C. & N. W. Ry. Co. 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 A. S. R. 655. As he approached the highway, his vision to the right, all the way to the top of the hill, from which the truck was approaching, was unobstructed for a quarter of a mile. Even though he may not have seen the truck approaching, he must have known from experience that highway No.
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Loking, Chief Justice.
Action for wrongful death of Kobert Warning, a minor. The trial court directed a verdict for defendants. This is an appeal from the order denying plaintiffs’ motion for a new trial.
The accident occurred on state highway No. 65, between the decedent, aged 10% years, and a truck owned by defendant association and driven by its employe, the defendant Joseph Fafrowicz. Decedent, riding a bicycle down a private driveway, crossed the highway into the path of the truck, and was struck by it and killed.
On the morning of Máy 3, 1947, Kobert Warning borrowed a friend’s bicycle and, together with Donald Anderson, a playmate aged 11, went riding in the neighborhood of Kobert’s home on the outskirts of the village of Mora, Minnesota. State highway No. 65 extends in a north-south direction, passing the Warning home to the west. It is a heavily traveled arterial highway, about 32 feet wide, with guardrails on both sides at the point where the accident occurred. There is also a gradual upgrade on highway No. 65 to the north, the top of the hill being about a quarter of a mile from the scene of the accident.
At first the boys went north toward the Harlan place, then turned back and went up the Hoffert driveway to look at some forts which they had built in the woods near the Hoffert place. This driveway is about 200 feet south of the Warning residence [295]*295on the same side of the highway. It is made of sand and gravel and goes up an incline. (There is no stop sign thereon protecting the highway.) Because of the upgrade and the sand on the driveway to the Hoffert place, the two boys got off their bicycles and walked part of the way. After looking at the forts, they started down the hill. Donald preceded Robert by a short distance. As he approached highway No. 65, he slowed down by dragging his feet, because his bicycle did not have brakes, and made the turn north up the east side of the highway. As he stopped, he saw defendant’s truck coming down the hill from the north and shouted to Robert, who had not yet reached the highway, “Look out. Here comes a truck.” Robert immediately put his feet down and began to drag them on the driveway. He did not use his brakes. Because -he was moving too fast to turn, as Donald had done, he went across to the west side of the highway and into the path of the truck, which Fafrowicz had swung toward the guardrails to avoid a collision. The truck hit the guardrails and decedent at about the same instant.
We are not concerned on this appeal with the negligence of the driver. Fafrowicz, which was clearly established because of excessive speed and defective brakes. The sole issue is whether decedent was guilty of contributory negligence as a matter of law.
Decendent’s act in entering the highway from the private driveway without yielding the right of way to defendant’s truck and his act in riding to the west side of highway No. 65 were in violation of M. S. A. 169.20, subd. 4, and 169.18, subd. 1, respectively. A violation of the traffic act is prima facie evidence of negligence (§ 169.96) which, if not rebutted, is conclusive. Olson v. D. M. & I. R. Ry. Co. 213 Minn. 106, 5 N. W. (2d) 492; Lee v. Molter, 227 Minn. 557, 35 N. W. (2d) 801.
In the case at bar, the evidence did not reveal sufficient facts justifying decedent’s violation of either statute to warrant submitting the case to the jury. Although Fafrowicz stated at the coroner’s inquest that he tried to straddle the two boys, his ex[296]*296planation of this statement at the trial shows that he did. not turn toward the direction in which they were coming. Hence, he could not have confused or misled decedent into believing that his only means of escaping injury was to cross to the west side of the highway. On cross-examination, Fafrowicz stated:
“Q. Was that question asked of you and did you answer ‘Headed the same way but he couldn’t make the turn so he came on my side. At first I tried to straddle him but it was so close I swung to the right.’ Do you remember answering that question?
“A. Yes, sir.
“Q. Making that statement. What do you mean by saying that you tried to straddle him?
“A. I suppose I was trying to go on the other side of' him, let him get across. That was my point there.
“Q. You mean by straddling him—
“A. The two boys — straddle the two boys. That was my point.
“Q. You mean you intended to go between the two boys.
“A. That is what I was figuring on doing but after it was so close I just swung over to my right.
“Q. You meant first to turn to the left and instead you turned to the right.
“A. Yes, sir.
“Q. You had time to think about whether you wanted to straddle them or not, didn’t you?
“A. I don’t know no more.
“Q. Well, you thought about it, didn’t you?
“A. A person is a pretty fast—
“Q. But not fast enough sometime.
“A. That is it.
“Q. By saying you meant to straddle the boys to get into clear did you mean you intended to turn to the left and go between the two boys?
“A. Yes, sir.
“Q. And you, saw you couldm/t do it so you swung to the right.
[297]*297“A. Yes.
“Q. What prevented you from turning to your left?
“A. The other toy was on the left.” (Italics supplied.)
This testimony and other evidence makes it clear that Fafrowicz did not turn to his left. He said that he intended to do so but saw that he could not because the Anderson boy was on the left. Charles Cooper, a witness for plaintiffs, who was driving a car behind Fafrowicz, testified that defendant driver did not swerve. Thus, Fafrowicz’s statement that he tried to straddle deceased, when viewed in the light of his explanation of what he meant and Cooper’s testimony that he did not swerve, does not afford a basis for the conclusion that there were facts which may have justified deceased in believing that his only escape from danger was to cross to the west side of the highway. Since there was no showing of justification for the violation of either statute, there was no case to go to the jury (Demmer v. Grunke, 280 Minn. 188, 42 N. W. [2d] 1), unless, because of his age, his capacity to exercise care should have been submitted to it.
The evidence shows that the reason why Robert failed to yield the right of way to the truck was either because he failed to keep a proper lookout and to heed Donald Anderson’s warning or, if he did see the truck, because he failed to use the knowledge which his senses gave him. Cf. Carlson v. C. & N. W. Ry. Co. 96 Minn. 504, 105 N. W. 555, 4 L. R. A. (N. S.) 349, 113 A. S. R. 655. As he approached the highway, his vision to the right, all the way to the top of the hill, from which the truck was approaching, was unobstructed for a quarter of a mile. Even though he may not have seen the truck approaching, he must have known from experience that highway No. 65 was heavily traveled and that it was dangerous to enter or cross it without first taking proper precautions. When Donald Anderson shouted to him that there was a truck coming, instead of using his brakes, which he knew were in good working condition, he dragged his feet in an effort to stop. He was coming too fast to make the turn and went [298]*298straight across the road to the other side where the accident happened.
A child is not held to the same degree of vigilance that is required of an adult to constitute ordinary care, but he is bound to exercise the degree of vigilance that an ordinarily prudent boy of his age, mental capacity, and intelligence is capable of using. Twist v. Winona & St. P. R. Co. 39 Minn. 164, 39 N. W. 402, 12 A. S. R. 626; Borowski v. Sargent, 188 Minn. 102, 246 N. W. 540; Carlson v. Sanitary Farm Dairies, Inc. 200 Minn. 177, 273 N. W. 665; McCarthy v. City of St. Paul, 201 Minn. 276, 276 N. W. 1; Hughes v. Minneapolis St. Ry. Co. 146 Minn. 268, 178 N. W. 605. In the case at bar, decedent was in good health and of average intelligence for his age. He had ridden bicycles for about two years around his former home in St. Paul and the school there, and he had ridden around the neighborhood of his home at Mora. He was a “pretty good” rider, and that very morning had shown Donald how the brakes worked, stopping the bicycle in a very short distance. He had ridden down the Hoffert driveway before and on the pavement of the highway. Not more than an hour before the accident he had told his mother, in response to her warning, that he would be careful. In our opinion, the evidence is compelling that decedent had the capacity and intelligence to know that it was dangerous to proceed swiftly down the private driveway onto the heavily traveled .highway and across it onto the wrong side without first looking for approaching vehicles, slowing down, or stopping. He had been warned of the approach of this very truck, notwithstanding which he coasted down the hill into its path without using his brakes. Under these circumstances, the court was justified in directing a verdict for defendants. Cf. Behr v. Schmidt, 206 Minn. 378, 288 N. W. 722; Boerner v. Wiemann, 206 Minn. 548, 289 N. W. 562. Where reasonable men can draw but one conclusion, the question of contributory negligence becomes one of law. Abbett v. C. M. & St. P. Ry. Co. 30 Minn. 482, 16 N. W. 266; Coffman v. Kummer, 179 Minn. [299]*299120, 228 N. W. 751. We hold that Eobert’s actions amounted to negligence as a matter of law. As was said in reference to a ten-year-old boy in Fezler v. Willmar & S. F. Ry. Co. 85 Minn. 252, 257, 88 N. W. 746, 748:
“So here the boy knew by his observations and experience, as well as by warning and admonition, that the railroad track was a dangerous place, and that trains were dangerous; and while it may have been a childish impulse that prompted him to run along beside the train in an attempt to keep up with it, that fact cannot excuse him from the responsibility of being in so perilous a place.”
Cf. Twist v. Winona & St. P. R. Co. 39 Minn. 164, 39 N. W. 402, 12 A. S. R. 626.
The order of the trial court is affirmed.