No. The court said the first trial was unfair because the judge gave the jury the wrong rules. For the boy, the rule isn't what a 'reasonable adult' would do, but what a 'reasonable 7-year-old' would do, because kids just aren't as careful as adults. For the driver, the rule is the opposite. You can't use your old age or bad eyesight as an excuse. If you can't drive as safely as a normal, healthy person, you either have to be extra careful or not drive at all, because your problems can't be an excuse for putting other people in danger.

Yes, the judge made a mistake in explaining the rules to the jury. They needed to be told to think about how young the boy is when deciding if he was being careful enough. Young kids aren't expected to be as careful as adults. The judge shouldn't have said the boy needed to be as careful as a normal grown-up. For the old driver, the judge made a different mistake. They suggested that the jury could think the driver's old age and poor health might make him less responsible. But that's not right. When adults hurt others, we judge them based on how a normal, healthy adult should act. In fact, the driver's problems with seeing and hearing mean he should have been extra careful when driving on a busy street. Because of these mistakes in explaining the rules, we need to have a new trial with better instructions for the jury.

<opinion type="majority">
<author id="b172-3">Hallam, J.</author>
Plaintiff brings this action on behalf of his minor son John B. Roberts, seven years old, to recover damages for injury from collision with defendant’s automobile. The jury found for defendant. Plaintiff appeals. Plaintiff assigns as error certain portions of the charge. Defendant contends that the charge was without error and further contends that, as a matter of law, defendant was without negligence and that the boy was negligent.
<bracketnum>1.</bracketnum> Defendant was driving south on a much traveled street in Owatonna. He was 77 years old. His sight and hearing were defective. A buggy was approaching him from the south. There were other conveyances on the street. The travel was practically blocked. The boy ran from behind the buggy across the street to the west and in front of defendant’s automobile. There is evidence that he had been riding on the rear of the buggy. He himself testified that he was crossing the street. As he passed in front of defendant’s automobile he was struck and injured.
The question of defendant’s negligence was a proper one to be submitted to the jury. Defendant was driving from four to five miles an hour, not a negligent rate of speed. If he was negligent, it was in failing to keep a proper lookout and in failing to promptly stop his ear. He testified that he saw the boy when he was four or five feet from the automobile. It is matter of common knowledge that an automobile traveling four or five miles an hour can be stopped within a very few feet, yet defendant knocked the boy down and his car passed clear over him. If defendant saw the boy as he now claims, he was not alert in stopping his car. If he did not see him, as he is alleged to have stated to others, he was not keeping a sharp lookout in this crowded stre.et. We aTe of the opinion that the evidence was such as to raise an issue of fact as to his negligence.
<bracketnum>2.</bracketnum> The question of the boy’s negligence was likewise for the jury. Had a mature man acted as did this boy he might have been chargeable with negligence as a matter of law. But a boy of seven is not held to the same standard of care in self protection. In considering his contributory negligence the standard is the degree of care commonly exercised by the ordinary boy of his age and maturity. Shearman &amp; Red-<page-number citation-index="1" label="153">*153</page-number>field, Negligence, § 72a. Hannula v. Duluth &amp; I. R. R. Co. 130 Minn, 3, 8, 153 N. W. 250. It would be different if he had caused injury to another. In such a case he could not take advantage of his age or infirmities.
<bracketnum>3.</bracketnum> The case being a proper one for submission to the jury, the question is, was it properly submitted?
In instructing the jury as to contributory negligence of the boy the court said: “A person may not go blindly across the street, especially where there is no street crossing. He must use the care which an ordinarily prudent person uses under those circumstances.” Plaintiff promptly at the conclusion of the charge excepted to this language and asked the court to charge “that the care required of the boy is only such as is usually exercised by children of his age and meptal capacity under similar circumstances.” This the court declined to do. The charge of the court did not give the jury the proper standard of care to be applied to this boy of seven. It is true that in another part of the charge the court stated to the jury that, in determining whether the boy was negligent, they should take his age into account. If it can be said that this particular statement cured the general erroneous one, then we encounter another difficulty as follows:
As to the negligence of defendant the court charged: “In determining whether the defendant was guilty of negligence, you may take into consideration * * * the age of the defendant * * * and whether or not the defendant had any physical infirmities.” If it can be said that the instruction that the age of the boy should be taken into consideration in determining his negligence, can be considered as an instruction that his age could be considered in extenuation of his conduct, then the same must be said of the similar instruction that they should consider the age and infirmities of the man in determining the question of his negligence. We think the charge would be so understood by a -jury. As above indicated, defendant’s infirmities did not tend to relieve him from the charge of negligence. On the contrary they weighed against him. Such infirmities, to the extent that they were proper to be considered at all, presented only a reason why defendant should refrain from operating an automobile on a crowded street where care was required to avoid injuring other travelers. When one by his acts or omissions causes <page-number citation-index="1" label="154">*154</page-number>injury to others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent normal man. Powell v. Berry, 145 Ga. 696, 89 S. E. 753, L.R.A. 1917A, 306.
Order reversed.
</opinion>

No. A child's conduct is measured against the standard of care expected of a child of similar age and maturity, not the adult standard of an ordinarily prudent person. Conversely, an adult defendant's physical infirmities do not lower the objective standard of care required, which is that of an ordinarily prudent normal person. The court found that the trial court's jury instructions were erroneous on both points. For the child, the instruction improperly applied the adult standard. For the defendant, the instruction improperly suggested that his age and infirmities could excuse his conduct, when in fact such infirmities presented a reason for him to exercise greater caution or to refrain from driving altogether on a crowded street.

Yes, the trial court erred in its jury instructions regarding the standard of care applicable to both the boy and the defendant. I hold that the case must be reversed because the jury was not properly guided on these issues. The court should have instructed that the boy's age and mental capacity are crucial in assessing his contributory negligence. The standard for a child is the degree of care commonly exercised by an ordinary boy of his age and maturity. The trial court's instruction that '[a] person may not go blindly across the street' and must use the care of an 'ordinarily prudent person' was incorrect when applied to a seven-year-old child. Regarding the defendant, the court erred in suggesting that his age and physical infirmities could be considered as potentially mitigating factors. On the contrary, these characteristics weigh against the defendant. When one causes injury to others, their negligence should be judged by the standard of care usually exercised by the ordinarily prudent normal person. The defendant's infirmities present a reason why he should have refrained from operating an automobile on a crowded street where care was required to avoid injuring other travelers. Furthermore, I find that the questions of both the defendant's negligence and the boy's contributory negligence were proper issues for the jury to decide, given the evidence presented.

Roberts v. Ring

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