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Ward v. Music

January 16, 1953

WARD ET AL.
v.
MUSIC



Duncan

DUNCAN, Justice. On the afternoon of June 6, 1949, Larry Music, eight years of age, was struck and killed by a truck owned by the appellants and operated by the appellant, James C. Ward. The appeal is from a judgment for $8,000 in favor of the estate of the decedent.

The accident occurred at a time when the truck was proceeding south on Main Street in the town of Inez and the deceased was crossing the street from the east side. The child's father was on the west side of the street, and testified that he observed his son as he started to cross and that he called and told him to be careful. The father did not observe the truck or see it at the time it struck his son. Immediately after it passed, he saw the body lying on the street and observed the truck proceeding down the street beyond the body.

None of the witnesses actually saw the child at the time he was struck, but the record leaves no doubt that he was hit by some part of the truck. In other respects, the evidence is conflicting. There is testimony that the truck was being operated at an excessive speed and on the left of the center of the street. On the other hand, the driver testified that he was driving at a reasonable rate of speed, on the proper side of the highway, and that he did not see the child at any time and had no knowledge of the accident until he was stopped by an officer a mile or so beyond the point where the accident occurred.

Reversal is sought upon three grounds: (1) Failure of the court to peremptorily instruct the jury to find for appellants, either because there was no evidence that the negligence of the driver was the proximate cause of the injury, or because the child was guilty of contributory negligence as a matter of law; (2) Erroneous instructions and failure to give an instruction offered by appellants; and (3) Rejection of a deposition offered by appellants.

Since a reversal is required on other grounds, we refrain at this time from discussing or deciding the question of whether or not the evidence is sufficient to show that the negligence, if any, of the appellant driver was the proximate cause of the injury and death of the child. The question is close, and in view of the fact that the evidence may differ materially on a subsequent trial, we would prefer to consider the matter in the light of the testimony introduced on a retrial without being bound by the law of the case.

A child under seven years of age is not chargeable with contributory negligence in any event. Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897. One between the ages of seven and fourteen years is presumptively not charged with such negligence. Sutton Const. Co. v. Lemaster's Adm'r, 223 Ky. 296, 3 S.W.2d 613. In some cases involving injuries to children between the ages of seven and fourteen years, it may be necessary to submit to the jury the question of whether or not the child is capable of being guilty of contributory negligence. Dixon v. Stringer, 277 Ky. 347, 126 S.W.2d 448, 452.

Assuming a child to be of sufficient age and mental capacity to be chargeable with contributory negligence, it is only required to exercise that degree of care which is ordinarily exercised by a child of its age, experience, and mental capacity. In this case, the court gave an instruction on contributory negligence without any qualification. The instruction assumes that this child was capable of being guilty of contributory negligence.

It is only in instances where it can be said that the minds of reasonable persons would not differ on the question that the acts of one charged with contributory negligence will be considered as constituting such negligence as a matter of law. The propensity of children running into or across streets is so generally recognized that it cannot be said that a child eight years of age is necessarily guilty of contributory negligence as a matter of law by running into the street in the path or side of a moving truck. A reasonable explanation might be offered for even an older person of more experience and mental capacity, for as said in Dixon v. Stringer, supra:

'* * * a pedestrian intending to cross the street comes out from between cars parked on the left side and steps into the path of the moving car; he naturally expects and looks out for cars approaching from his left, but just as naturally assumes that none will come from his right, as he knows that cars approaching from his right should be on the opposite side of the street.'

We do not think the deceased was guilty of contributory negligence as a matter of law.

Appellant insists that the court should have given an offered instruction which in effect would have informed the jury that appellant had a right to drive on the left of the center of the street if the left side was clear of all traffic or obstruction for a distance of one hundred and fifty feet.

KRS 189.300(1) provides:

'The operator of any vehicle when upon a highway shall travel upon the right side of the highway whenever possible, and unless the left side of the highway is clear of all other traffic or obstructions and presents a clear vision for a distance of at least one hundred and fifty feet ahead.'

The statute leaves much to be desired so far as clarity is concerned, and the opinions of this Court are not altogether in agreement as to its construction. These cases of Stark's Adm'x v. Herndon's Adm'r, 292 Ky. 469, 166 S.W.2d 828; H. M. Williams Motor Co. v. Howard, 251 Ky. 557, 65 S.W.2d 688; Lehman v. Patterson, 298 Ky. 360, 182 S.W.2d 897, indicate that it is negligence to ...


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