It also appears obvious that appellee Hall did not have the requisite physical and mental ability to avoid the boy's death. See: Ewing v. Biddle (1966), 141 Ind. App. 25, 216 N.E.2d 863. Nor was the necessary time element present, for in order that the doctrine apply, the peril must be known ". . . in time to clearly afford an opportunity to avoid injuring the one in 4.
Cases from other jurisdictions in which a minor was found to be engaged in an adult activity and thus held to the standard of care of a reasonable adult have generally dealt with the minor's operation of a motorized vehicle. See Jackson v McCuiston, 247 Ark. 862; 448 S.W.2d 33 (1969) (minor operating a tractor), Sheetz v Welch, 89 Ga. App. 749; 81 S.E.2d 319 (1954) (minor operating a motor scooter), Ewing v Biddle, 141 Ind. App. 25; 216 N.E.2d 863 (1966) (minor operating a go-cart), Williams v Esaw, 214 Kan. 658; 522 P.2d 950 (1974) (minor operating a motorcycle), Dellwo v Pearson, 259 Minn. 452; 107 N.W.2d 859 (1961) (minor operating a motorboat), Robinson v Lindsay, 20 Wn. App. 207; 579 P.2d 398 (1978) (minor operating a snowmobile). However, in Neumann v Shlansky, 58 Misc.2d 128; 294 N.Y.S.2d 628 (1968), a minor who had taken golf lessons and played golf regularly was held to an adult standard of care.
4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence. See: Lewis v. Mackley, 122 Ind. App. 247, 99 N.E.2d 442 (1952) (Transfer denied); Lee v. Dickerson, 131 Ind. App. 422, 171 N.E.2d 698 (1961); Stallings v. Dick, supra; Ewing v. Biddle, 141 Ind. App. 25 [8 Ind. Dec. 405], 216 N.E.2d 863 (1966).'
The rationale of these cases does not dictate the application of pedestrian statutes to children under seven for the purpose of determining their negligence. Ewing v. Biddle, 141 Ind. App. 25, 216 N.E.2d 863 (1966); Bixenman v. Hall, 141 Ind. App. 628, 231 N.E.2d 530 (1967), modified, 251 Ind. 527, 242 N.E.2d 837 (1968). For this reason, the refusal of defendant's instructions 28, 29, 30 and 31 and the exclusion of defendant's exhibit I were proper.
The case is now before us on plaintiff-appellant's petition to transfer. The Appellate Court bases its position that no special treatment for children exists in Indiana upon Ewing v. Biddle (1966), 141 Ind. App. 25, 216 N.E.2d 863. However, the court in Ewing expressly refused to hold that age, intelligence and experience should not be considered in determining the standard of care of a child.
In the following cases, a minor engaged in an adult activity was held to the standard of care of a reasonable adult. Jackson v. McCuiston, 247 Ark. 862, 448 S.W.2d 33 (1969) (minor operator of tractor held to adult standard partially because the minor had been taught to be proficient in the operation of the tractor); Prichard v. Veterans Cab Co., 63 Cal.2d 727, 408 P.2d 360, 47 Cal.Rptr. 904 (1965), overruling Goodwin v. Bryant, 227 Cal.App.2d 785, 39 Cal.Rptr. 132 (1964); Wagner v. Shanks, 56 Del. 555, 194 A.2d 701 (1963) (minor driving an automobile held to adult standard of care; plus under the guest statute the minor was held to an adult standard of care as to his passengers); Madina v. McAllister, 202 So.2d 755 (Fla. 1967) (minor operating motor scooter); Sheetz v. Welch, 89 Ga. App. 749, 81 S.E.2d 319 (1954) (minor operating motor scooter); Goodfellow v. Coggburn, 98 Idaho 202, 560 P.2d 873 (1977) (minor operating farm tractor on roadway); Ewing r. Biddle, 141 Ind. App. 25, 216 N.E.2d 863 (1966) (minor operating go-cart); Allen v. Ellis, 191 Kan. 311, 380 P.2d 408 (1963) (minor operating motor vehicle, opinion based primarily on statute requiring licensing); Williams v. Esaw, 214 Kan. 658, 522 P.2d 950 (1974), overruling Harvey v. Cole, 159 Kan. 239, 153 P.2d 916 (1944) (minor operating motorcycle); Dellwo v. Pearson, 259 Minn. 452, 107 N.W.2d 859, 97 A.L.R.2d 866 (1961) (minor operating motorboat); Goss v. Allen, 70 N.J. 442, 360 A.2d 388 (1976) (beginning skier held to child's standard of care, but the court commented that minors engaged in activities which were potentially hazardous, i.e., operating a motor vehicle or a motorboat or hunting would be held to an adult standard of care); Adams v. Lopez, 75 N.M. 503, 407 P.2d 50 (1965) (minor operating a motor scooter); Neumann v. Shlansky, 58 Misc.2d 128, 294 N.Y.S.2d 628 (1968) (a minor who had taken golf lessons and played golf regularly was held to an adult standard of care; the situation was analogous to a minor operating
"This limited scope may be, again, summarized prospectively as follows: 1) The defendant had actual knowledge of the plaintiff; 2) The defendant knew of the plaintiff's perilous position; 3) The defendant had physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and 4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence. See: Lewis v. Mackley, 122 Ind. App. 247, 99 N.E.2d 442 (1952), (Transfer denied); Lee, etc. v. Dickerson, 131 Ind. App. 422, 171 N.E.2d 698 (1961); Stallings v. Dick, supra; Ewing v. Biddle, 141 Ind. App. 25, 216 N.E.2d 863 (1966)."
Per Curiam. In short, when an infant participates with adults in a sport ordinarily played by adults, on a course or field ordinarily used by adults for that sport, and commits a primary tortious act, he should be held to the same standard of care as the adult participants (see Dellwo v. Pearson, 259 Minn. 452; Ewing v. Biddle, 216 N.E.2d 863 [Ind.]; Restatement, Torts 2d, § 283A, Comment c).
"1) The defendant had actual knowledge of the plaintiff; 2) The defendant knew of the plaintiff's perilous position; 3) The defendant had 1. physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and 4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence. See: Lewis v. Mackley, 122 Ind. App. 247, 99 N.E.2d 442 (1952) (Transfer denied); Lee etc. v. Dickerson, 131 Ind. App. 422, 171 N.E.2d 698 (1961); Stallings v. Dick, supra; Ewing v. Biddle, 141 Ind. App. 25, 216 N.E.2d 863 (1966)."
This limited scope may be, again, summarized prospectively as follows: 1) The defendant had actual knowledge of the plaintiff; 2) The defendant knew of the plaintiff's perilous position; 1. 3) The defendant had physical control over the instrumentality and had the last opportunity through the exercise of reasonable care to avoid the injury; and 4) The plaintiff was oblivious to his own danger, notwithstanding his own contributory negligence. See: Lewis v. Mackley, 122 Ind. App. 247, 99 N.E.2d 442 (1952), (Transfer denied); Lee, etc. v. Dickerson, 131 Ind. App. 422, 171 N.E.2d 698 (1961); Stallings v. Dick, supra; Ewing v. Biddle, 141 Ind. App. 25, 216 N.E.2d 863 (1966). We believe the foregoing to be an accurate statement of the doctrine as it is currently presented by the applicable cases in this State and, in light of this, we hold the instruction was a fair representation of the doctrine and was not erroneous.