Blakesley v. Standard Oil Co.

Weaver, J.

(concurring). I concur in the conclusion that a new trial must be ordered, because I think theipeculiar condition of the record indicates that substantial justice will best be accomplished by a retrial which will not be complicated by the injection of an issue upon which there is no evidence. I do not agree that, as a matter of law, there is no evidence of negligence on the part of the defendant, or that, as a matter of law, plaintiff is chargeable with contributory negligence. I think there is competent evidence that the truck body was left *322in the street, and that the plats and maps put in evidence do not conclusively negative the existence of a public street connecting the north end of "Washington Street and the east end of North Street. On the contrary, I think there is evidence on which the jury could find that there is such a recognized public way, and that the box was within its limits.

Again, upon the further question of contributory negligence, it appears that this plaintiff was, at the time, only about 11 years old; and it is the settled law of this state that, until a child reaches the age of 14 years, he is presumptively incapable of contributory negligence. Hazlerigg v. Dobbins, 145 Iowa 495; Doggett v. Chicago, B. & Q. R. Co., 134 Iowa 690; Long v. Ottumwa R. & Lt. Co., 162 Iowa 11; Johnston v. Delano, 175 Iowa 498, 501; McEldon v. Drew, 138 Iowa 390, 395. See, also, Cedar Creek Store Co. v. Stedham, 187 Ala. 622 (65 So. 984); Lovell v. De Bardelaben C. & I. Co., 90 Ala. 13 (7 So. 756); Moore v. Moore Co., 4 Ont. L. Rep. 167; Bridger v. Asheville & S. R., 25 S. C. 24; Avey v. Galveston, R. & S. A. R. Co., 81 Tex. 243; Schilling v. Abernethy, 112 Pa. 437 (3 Atl. 792); West Philadelphia P. R. Co. v. Gallagher, 108 Pa. 524; Strawbridge v. Bradford, 128 Pa. 200 (18 Atl. 346); Kelly v. Pittsburg & B. Traction Co., 204 Pa. 623 (54 Atl. 482); Potera v. City of Brookhaven, 95 Miss. 774 (49 So. 617); Denver City Tramway Co. v. Nicholas, 35 Colo. 462 (84 Pac. 813); City of Omaha v. Richards, 49 Neb. 244 (68 N. W. 528).

True, this presumption is rebuttable, and whether it 'has been sufficiently rebutted is a jury question (Quinn v. Ross Motor Car Co., 157 Wis. 543 [147 N. W. 1000]); and quite universally it is held that, in any event, the degree of care which a child is required to observe is only such as may reasonably be expected from children of his age, experience, and capacity, and that is for the determination of the jury. Briese v. Maechtle, 146 Wis. 89. Nor is a child in the street in «any sense a trespasser, even though he is using the street for the purposes of play. City of Chicago v. Keefe, 114 Ill. 222; City of Omaha v. Richards, supra; Railroad Co. v. Gladmon, 15 Wall. (U. S.) 401.