Ewing v. Biddle

12 Citing cases

  1. Bixenman v. Hall

    141 Ind. App. 628 (Ind. Ct. App. 1967)   Cited 5 times

    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.

  2. Farm Bureau Ins v. Phillips

    116 Mich. App. 544 (Mich. Ct. App. 1982)   Cited 4 times
    In Farm Bureau, the court noted that in negligence cases involving children, the reasonable child standard would apply unless the child is engaged in an adult activity.

    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.

  3. Shelby Nat'l. Bk., Adm. v. Miller

    147 Ind. App. 203 (Ind. Ct. App. 1970)   Cited 16 times
    In Miller in an offer to prove the proffered expert was first asked to describe the scientific methods for determining the speed of a vehicle.

    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).'

  4. Mann v. Anderson

    447 F.2d 533 (7th Cir. 1971)   Cited 6 times
    Noting that the "[d]efendant makes several plausible, even persuasive, arguments for a more flexible rule on the contributory negligence of minors. But such arguments should be addressed to the Indiana courts; the federal district court had no choice but to apply the well-established Indiana law."

    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.

  5. Bixenman v. Hall

    251 Ind. 527 (Ind. 1968)   Cited 26 times
    In Bixenman, the supreme court adopted the generally-held rule that "where a minor is charged with negligence or contributory negligence by reason of his violation of a safety statute while engaged in an activity not requiring adult qualifications, the standard of care to be applied to such minor is that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level."

    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.

  6. Robinson v. Lindsay

    20 Wn. App. 207 (Wash. Ct. App. 1978)   Cited 6 times

    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

  7. Smith v. Chesapeake Ohio R.R. Co.

    160 Ind. App. 256 (Ind. Ct. App. 1974)   Cited 19 times

    "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)."

  8. Neumann v. Shlansky

    63 Misc. 2d 587 (N.Y. App. Term 1970)   Cited 9 times

    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).

  9. Davis v. Brown

    146 Ind. App. 465 (Ind. Ct. App. 1970)   Cited 3 times

    "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)."

  10. Nat'l. City Lines, Inc. v. Hurst

    145 Ind. App. 278 (Ind. Ct. App. 1969)   Cited 13 times

    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.