dissenting.
I must dissent. In summary, it is my opinion that the trial court's Instruction 20 should be affirmed because it is an aceu-rate statement of the impact of a statutory violation on a child's standard of care; any error arising from the trial court's Instruction 29 on incurred risk was waived because the Ballers failed to object to Instruction 26 which dealt with the same issue of incurred risk; and, the trial court did not err in excluding the deposition of an expert witness concerning the behavior of seven-year-old children because such evidence was not beyond the common knowledge and experience of ordinary persons.
As I see it, the majority misapplies existing case law as to the effect of a violation of a safety statute on the standard of care applicable to a child. The majority interprets the leading case of Rixenman v. Hall (1968), 251 Ind. 527, 242 N.E.2d 837, as holding it improper to convey to the jury the impression that a violation of a safety statute by a child constitutes negligence. Majority opinion at 385. Bixenman, however, held that in rebutting the presumption of negligence created by a statutory violation consideration should be given to the standard of care required of a child and not of an adult.
"Proof of [the violation of a safety regulation] by the child will raise a rebut-table presumption of negligence which the child must then overcome by proof that in spite of the violation, he exercised that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level."
Bixenman, supra at 535, 242 N.E.2d at 841 (emphasis supplied). I consider this language of our supreme court regarding the crea, ., of a rebuttable presumption of negligence by a child's violation of a safety statute as essential to its holding in Bixenman, and is not, as characterized by the majority, mere "gratuitous closing dictum."
This court has previously approved of jury instructions, like Instruction 20, that created rebuttable presumptions of negligence from a child's statutory violations. LaNoux v. Hagar (1974), 159 Ind.App. 646, 308 N.E.2d 873, trons. denied. Our supreme court approved of a similar instruction which employed mandatory language regarding a finding of negligence based on a child's statutory violation. Thornton v. Pender (1978), 268 Ind. 540, 377 N.E.2d 613. In light of the rule of Bizenman, and *388its subsequent application in our case law, I find Instruction 20 to be a correct statement of the law on the presumption of negligence created by Chuck's statutory violations.
The majority concludes that Instruction 29 was an improper application of the doe-trine of incurred risk. Specifically, the majority finds that Chuck did not have actual knowledge of the impending danger occasioned by the truck driven by Corle, and therefore an instruction on incurred risk was erroneous. Even if one assumed, ar-guendo, that actual knowledge on the part of Chuck was not shown, I would hold that the Ballers waived this error by their failure to object to Instruction 26.
The Ballers did not object at trial or in their motion to correct error to Instruction 26 which stated:
"Defendants contend that with regard to Charles Baller IV's claims, Charles Bal-ler, IV is barred from recovery because he incurred the risk of his injuries. With regard to his defense, defendant has the burden of proof by preponderance of the evidence. Incurred risk is a complete bar to recovery by Charles Baller, IV. A person incurs the risk of injury when he voluntarily does an act, engages in some conduct or places himself in a position of danger and he has knowledge of and appreciates the risk attendant to his act or conduct.
If you find that Charles Baller, IV voluntarily ran across Wiley Street and that he knowingly placed himself in a position of danger when he ran into Wiley Street without looking and that he had knowledge and appreciated the risk of placing himself in this position of danger by engaging in such conduct, you shall find for the defendants."
Record at 315. Instruction 26 thus placed before the jury the same issue which the majority finds erroneous in Instruction 29. In this situation, the error was waived and, considering all the instructions, does not require reversal because the Ballers suf-fered no prejudice. See United States Fidelity & Guar. Co. v. Baugh (1970), 146 Ind.App. 583, 257 N.E.2d 699, trans. denied.
Finally, the majority holds that the trial court erred in excluding the deposition of James Murray (Murray) concerning the typical behavior of seven-year-old children. Even assuming that Murray qualified as an expert on child behavior because of his nineteen years of experience in grade schools, the majority admits that the information contained in Murray's deposition was not beyond the jury's knowledge. Indiana has long recognized that expert testimony is inappropriate on matters within the common knowledge and experience of ordinary persons. See Breese v. State (1983), Ind.App., 449 N.E.2d 1098, trans. denied; Rosenbalm v. Winski (1975), 165 Ind.App. 378, 332 N.E.2d 249, trans. denied. The Ballers were not entitled to present Murray's expert opinion and were therefore not prejudiced by the trial court's refusal to admit his deposition.
All in all, I can find no reversible error. The judgment should be affirmed.