Negligence — Automobiles — Pedestrian — Child — Sudden appearance from behind obstruction — Personal injury — Proximate cause of death — Contributory negligence of parents — Judgment n.o.v.
In an action of trespass by parents to recover damages for the death of their minor child, the testimony established that the plaintiffs and their minor child were proceeding northwardly in their automobile on a country road and that they parked their car on the right side of the road with the right hand wheels to the right of the improved portion of the highway. The distance from the parked car to the top of a hill to the north was about 800 feet. The plaintiffs stopped to send the child across the road to a house. Both parents testified that they looked in both directions before the child started around the car and across the highway and that no other automobiles were then in sight. The defendant, who was the only eye-witness to the actual happening, stated that he was proceeding southwardly and that the child ran from behing the parked car into the left hand fender of his car as he was passing the plaintiff's automobile. The evidence was conflicting as to the speed of the defendant's, car but there was nothing to indicate that he had reason to anticipate the act of the child.
Held: (1) That the proximate cause of the death of the child was her sudden running from back of the parked car into the automobile of the defendant, without any reason on the part of the driver to anticipate the act of the child and without opportunity to stop after the child came in view; (2) that the parents were guilty of contributory negligence in that they failed in the performance of their duty to look before sending the child across the roadway when the defendant's car must have been in sight, and (3) that a judgment entered for the defendant non obstante veredicto will be affirmed.
If a child is not able to comprehend and appreciate danger then parents should exercise judgment and care and should look before sending the child into a roadway. The degree of protection required of parents is in proportion to the helplessness and indiscretion of the child.
Drivers of automobiles cannot be expected to anticipate the sudden appearance of a child from behind an automobile or some similar obstruction to view.
Argued October 26, 1930.
PER CURIAM, January 30, 1931:
The questions raised in this case are thoroughly considered and discussed in the opinion of the learned President Judge of the court below; judgment appealed from is affirmed on that opinion.