1 Reported in 273 N.W. 665. In suits to recover for personal injuries, expenses, and loss of services arising out of a collision between a milk truck and a bicycle ridden by the minor plaintiff, John W. Carlson, he and his father recovered verdicts respectively in the sums of $18,000 and $6,000. The defendants come here on appeal from orders denying their motions for judgment or a new trial.
The accident occurred at about 6:50 a. m. on July 13, 1935, on a paved alley which extends from Fairview avenue to Underwood avenue between Pinehurst avenue and Ford Road, a block about 1,200 feet long, in the city of St. Paul. At that time John W. Carlson, the minor plaintiff, was about six years and ten months old. The milk truck approached the scene of the collision from the west. As it came into the alley from the Fairview end it had to climb something of a hill, but before it arrived within 300 or 400 feet of the place of the accident it was traveling on a slight upgrade (one-half of one per cent). There were no houses or garages on the south side of the 20-foot paved alley, but on the north side there were a number of houses and garages, the latter being placed sideways *Page 179 to and abutting upon the alley with entrances and paved driveways leading thereto on and from the easterly ends thereof. The defendant Arnold, who was driving the truck, was on his way to a residence three or four lots easterly of the point of collision. The truck was equipped with two-wheel brakes only. It was short and, at the time of the collision, heavily loaded. It was so arranged that the driver might sit in the cab or stand in either side of the truck and steer it conveniently by means of a vertical steering handle. In case the driver occupied the standing position, he was provided with brake and clutch pedals which could be operated by his feet. The truck was equipped with a governor calculated to limit its top speed to 21 miles per hour. As Arnold drove it easterly in the alley approaching the place of collision he was operating the truck from the standing position on the right side. Eyewitnesses estimated his speed at from 20 to 25 miles per hour. He stated that he did not see John until John rode out of the driveway on the easterly side of the Roalkvam garage, just east of which the collision occurred. He estimated that John was then 12 or 15 feet from him. This was undoubtedly an understatement because one of the eyewitnesses testified that she heard the screech of his brakes before his truck emerged from behind the garage. The boy on the bicycle collided with the left front corner of the truck and was so injured that one of his legs was amputated above the knee, one of his thumbs was amputated, and he was very badly bruised, shaken up, and internally injured. There was evidence that skid marks extended westward from the truck, as it was situated after the accident, for about 27 or 28 feet.
The appellants contend, first, that the evidence is insufficient to sustain a finding of negligence on the part of the driver; second, that it conclusively appears that John was negligent; third, that the court erred in submitting the case to a jury on the theory of wilful negligence; fourth, that it erred in refusing their request, made at the close of the argument to the jury, that the court instruct the jury as to the rule applicable to those who are confronted with an emergency; fifth, that the court erred in defining the defendants' duty toward children. *Page 180
[EDITORS' NOTE: PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.] *Page 181
1. It is conceded that children were accustomed to play in this alley and that the defendant Arnold was aware of this custom, although he claims never to have seen children playing in the alley at so early an hour. There was some evidence that just prior to the point of impact the left side of his car was somewhat to the left of the center line of the 20-foot pavement in the alley. Arnold testified that he was on the alert for cars that might be backing out of the garages on his left, but if, under the circumstances, he was traveling at the speed testified to by two of the eyewitnesses, with a heavily loaded truck which was equipped with brakes on the rear wheels only, we think it was a question for the jury to determine whether or not he was guilty of negligence under the circumstances disclosed by this record.
2. Mr. Justice Mitchell, in Twist v. Winona St. P. R. Co.39 Minn. 164, 169, 39 N.W. 402, 405, 12 A.S.R. 626, stated:
"A child is bound to use such reasonable care as one of his age and mental capacity is capable of using; and his failure to do so is negligence."
This doctrine is applicable to children of the age of John. Eckhardt v. Hanson, 196 Minn. 270, 264 N.W. 776,107 A.L.R. 1. In the case last cited Mr. Justice Hilton reviewed the authorities with reference to the so-called Illinois and Massachusetts rules, and this court adopted the Massachusetts rule as the more just and reasonable and there held that the jury was justified in finding a six-year old child guilty of contributory negligence. The contention here is that John was guilty of contributory negligence as a matter of law and that the jury was not justified by the evidence in acquitting him of such negligence. John evidently took no precaution to look either way on the alley before riding out onto it. But we think that the jury was justified in finding that he used such care and vigilance as might reasonably be expected of one of his age and mental capacity. The jury might well have thought that a child of that age may have depended upon his acute hearing for warning of the approach of vehicles. According to one of the witnesses, he had been riding along the alley immediately before the accident and *Page 182 had turned off from it onto the Roalkvam driveway. If at that time he had not been aware of the approach of the truck or heard it coming, a child of his age and mental capacity may have thought himself justified in returning without further observation.
3. At the request of the plaintiff the court charged:
"If you find from the evidence in this case that the defendant Arnold, before this accident happened, saw or discovered the plaintiff's child in a position of danger in time to avoid this accident and after such discovery failed to exercise ordinary or reasonable care to prevent injury to said child, then and in such case, even though you should also find that said child was guilty of contributory negligence your verdicts would be for the plaintiffs."
(a) Before passing to the consideration of this charge, we wish to express our disapproval of the action of some trial courts in announcing, as was done in this case, that any portion of the charge is given by request of either party. A requested charge should be given only when the trial court approves of and adopts as its own the law contained in the request, and it should preferably be incorporated in the appropriate part of the body of the charge so as not to destroy its symmetry.
(b). The complaint in this action alleged that Arnold, after observing John in a position of danger, "failed to use the means at hand to avoid injury to said child," which was quite obviously an allegation of wilful or wanton negligence within the rule laid down in Anderson v. M. St. P. S. S. M. Ry. Co.103 Minn. 224, 227, 228, 114 N.W. 1123, 1124,14 L.R.A.(N.S.) 886. In that case the plaintiff was injured by being struck by a locomotive while he was standing upon the defendant's right of way too close to the track, and the complaint alleged that the defendant's servant in charge of the locomotive failed to check the speed thereof or give any warning of its approach, "although they knew, or in the exercise of ordinary care ontheir part could readily have known or ascertained" that plaintiff was in a dangerous and exposed position. This court there held that the inclusion of the words "or in the exercise of ordinary care on their part could readily have known or ascertained" prevented *Page 183 the complaint from alleging a cause of action and that without the words last quoted it would have charged wilful or wanton negligence, which, though not necessarily including the element of malice or actual intent to injure another, does charge a reckless disregard for the person or property of another by failing, after discovering the peril, to exercise ordinary care to prevent the impending injury. Such negligence, if proved, established liability irrespective of contributory negligence. The question presented by this assignment of error is whether or not the evidence in this case justified the jury in finding wilful or wanton negligence on the part of Arnold. In our opinion it does not.
Arnold testified that he did not observe the boy until he came riding out onto the alley from behind the Roalkvam garage immediately before the instant of collision. From his own testimony and that of Miss Schleh, it is quite obvious that he immediately applied his brakes and then, just before the impact or at about that time, swung his truck to the right. The plaintiff contends that the jury would have been justified in finding that he saw the boy while he was riding his bicycle along the alley prior to the time when he turned off the alley around the cast side of the Roalkvam garage. Upon this record it seems to us that the boy might not have been visible in the alley when Arnold came within view. But, assuming that all of the inferences which plaintiff contends for might be drawn and that Arnold might have seen the boy prior to his leaving the alley, nevertheless at the time when he then saw him John was not in a position of peril, but was leaving the alley toward and onto the Roalkvam driveway. The boy entered the position of peril when he turned around and came off the driveway into the alley, and it is quite evident from the record that Arnold, when confronted with this emergency, immediately took action to prevent the collision and that there was no evidence which would sustain a finding of wilful or wanton negligence. We think that the court erred in submitting the question of wilful negligence to the jury.
4. When Arnold observed the boy riding his bicycle off the driveway onto the alley, headed in that direction, it appears to us that the jury might well have found that he was confronted with an *Page 184 emergency through no fault of his own, and the jury should have been instructed as stated in Johnson v. Townsend, 195 Minn. 107,110, 261 N.W. 859, 861:
"The law is that one, suddenly confronted by a peril, through no fault of his own, who in the attempt to escape does not choose the best or safest way, should not be held negligent because of such choice unless it was so hazardous that the ordinarily prudent person would not have made it under similar conditions."
5. Complaint is made of the charge in respect to what was said about the degree of care required toward children; and, while the language used in the charge was similar to some of the expressions of this court, it would be preferable to charge in substance that where children are known or may reasonably be expected to be in the vicinity a degree of vigilance commensurate with the greater hazard created by their presence or probable presence is required of a driver to measure up to the standard of what the law regards as ordinary care. Erickson v. M. St. P. S. S. M. Ry. Co. 165 Minn. 106, 115,205 N.W. 889, 45 A.L.R. 973. It is but a restatement of the rule that ordinary care is the exercise of a degree of care commensurate with the circumstances.
The orders denying new trials are reversed and the orders denying defendants' motions for judgment are affirmed.