"Following Easton v. Medema, supra, it was held that a child four years and three months of age was too young to be guilty of contributory negligence, Door v. Valley Lumber Co., 254 Mich. 694; that an infant three and one-half years of age could not be guilty of contributory negligence, Edgerton v. Lynch, 255 Mich. 456; that a child five years and eleven months old could not be guilty of contributory negligence as a matter of law, Micks v. Norton, 256 Mich. 308; and it was held in Benedict v. Rinna, 257 Mich. 349, that the question of infant plaintiff's contributory negligence was not involved, he begins only five years and eight months old; and later by unanimous opinion it was held in Guscinski v. Kenzie, 282 Mich. 204, that a boy five years old was too young to be guilty of contributory negligence. "Since Mr. Justice FEAD'S opinion in Easton v. Medema, supra, there has been no mention by the Court of any factor other than age in determining the capacity of a child under seven years, to be guilty of negligence.
There is no contributory negligence chargeable to a 4-year-old child. Guscinski v. Kenzie, 282 Mich. 204; Edgerton v. Lynch, 255 Mich. 456. The standard of care required of drivers backing vehicles in a vicinity where small children are known to be present is higher than that required when only adults are known to be present.
As for the question of negligence, I do not wish to be understood to say that such question is invariably presented whenever one drives a golf ball on a golf course in the direction of others who are ahead, particularly if they are adults. As was said, however, in Edgerton v. Lynch, 255 Mich. 456, 460: "The courts have properly held drivers to a stricter degree of care when they see children on the road than when they see adults.
This intent is found not only in section 1 of the amendment, but also in the title which reads in part, "An act requiring compensation for causing death and injuries resulting in death by wrongful act;" and from an examination of the liability created as indicated by a comparison of the damages recoverable under the death and survival acts prior to this amendment and under section 2 of the amendment. The situation prior to the 1939 amendment was that where the action was brought under the death act, recovery was limited by the act to actual pecuniary loss suffered by one entitled to or receiving support from the deceased (see In re Venneman'sEstate, 286 Mich. 368) and funeral expenses ( Edgerton v. Lynch, 255 Mich. 456). And where action was brought under the survival act (where the injured party survived even though only a short time), recovery was permitted of such damages as the deceased could have recovered had he lived to bring an action, such as conscious pain and suffering, loss of earnings sustained by deceased from the time of the accident until death and prospective loss from the date of death throughout the life expectancy of the deceased. See 18 Michigan State Bar Journal, p. 116.
" Following Easton v. Medema, supra, it was held that a child four years and three months of age was too young to be guilty of contributory negligence, Door v. Valley Lumber Co., 254 Mich. 694; that an infant three and one-half years of age could not be guilty of contributory negligence, Edgerton v. Lynch, 255 Mich. 456; that a child five years and eleven months old could not be guilty of contributory negligence as a matter of law, Micks v. Norton, 256 Mich. 308 ; and it was held in Benedict v. Rinna, 257 Mich. 349, that the question of infant plaintiff's contributory negligence was not involved, he being only five years and eight months old; and later by unanimous opinion it was held in Guscinski v. Kenzie, 282 Mich. 204, that a boy five years old was too young to be guilty of contributory negligence. Since Mr. Justice FEAD'S opinion in Easton v. Medema, supra, there has been no mention by the court of any factor other than age in determining the capacity of a child under seven years, to be guilty of negligence.
It is admitted plaintiff was injured in some way. There is no proof from which defendant's negligence may be legitimately inferred. The question of plaintiff's contributory negligence was not involved, he being but five years and eight months old at the time of the injury. Johnson v. City of Bay City, 164 Mich. 251 (Ann. Cas. 1912 B, 866); Beno v. Kloka, 211 Mich. 116; Easton v. Medema, 246 Mich. 130; Edgerton v. Lynch, 255 Mich. 456. We think the court arrived at a correct conclusion, and judgment is affirmed, with costs.
Id. In addition, the fact that an accident occurred does not give rise to a presumption of negligence on the part of the driver. Edgerton v Lynch, 255 Mich. 456, 460; 238 N.W. 322 (1931). Whether a driver met the standard of reasonable prudence generally is a question for the jury. Marietta v Cliff's Ridge, Inc, 385 Mich. 364, 370; 189 N.W.2d 208 (1971).
The fact that an accident occurred does not, by itself, give rise to a presumption of negligence. Edgerton v Lynch, 255 Mich. 456, 460; 238 N.W. 322 (1931). Nevertheless, a driver's actual knowledge of the presence of children will impose a heightened duty of vigilance.