Opinion
March 3, 1954 —
April 6, 1954.
APPEAL from a judgment of the county court of Washington county: MILTON L. MEISTER, Judge. Reversed.
For the appellant there was a brief by Byrne, Bubolz Spanagel of Appleton, and oral argument by Edward J. Byrne.
For the respondents the cause was submitted on the brief of Bartelt Bartelt of Kewaskum, attorneys, and Henry A. Detling of Sheboygan of counsel.
Action by Arnold Shaske, individually, and as guardian ad litem for John Shaske against Elroy Hron, individually, and as guardian ad litem for Kevin Hron. Kevin, a child four years and eight months of age, threw a stone, striking a bottle near which John Shaske, another child of tender years, was standing, with the result that a chip of glass struck John Shaske in the eye. There was a motion for summary judgment on behalf of Kevin Hron, the minor. The proceedings on the motion for summary judgment are related solely to the liability of Kevin Hron and were based upon the claim that the action against him was not maintainable because of his age. The judgment was denied, and the guardian ad litem of Kevin appeals.
The question presented on this appeal is whether a boy four years, eight months old, of normal intelligence for his age, is, as a matter of law, incapable of negligence. There is a dividing line in child development of intelligence and aptitude below which a child is not expected to conform to the standard of behavior reasonably expected of an older person, and because of this lack of development the acts of the child are to be judged by a standard of behavior based on what may be reasonably expected from such a child. The caution required of a child depends on the maturity and capacity of the child. If he is "so young as to be manifestly incapable of exercising any of those qualities of attention, intelligence, and judgment which are necessary to enable him to perceive a risk and to realize its unreasonable character," he is generally held incapable of negligence. Restatement, 2 Torts, p. 743, sec. 283, comment e.
There is an age of a child at which general experience declares him to be non sui juris, and it has been generally considered that a child under five and one-half years of age is incapable of either contributory or primary negligence. Under the circumstances disclosed by the evidence which the record contains, the child, Kevin Hron, must be held to be free from negligence arising out of an act resulting in damage to a child with whom he was playing. It is considered that the motion for summary judgment in favor of the child dismissing the complaint against him should be granted.
In Ruka v. Zierer, 195 Wis. 285, 293, 218 N.W. 358, the court made the following statement: "The boy was five years and three months of age. While it is held in a few jurisdictions that a child of that age is capable of contributory negligence, the overwhelming weight of authority is to the effect that a child of that age is conclusively presumed to be incapable of contributory negligence. See Note in L.R.A. 1917F, on page 57. This rule meets with our entire approval, especially under the facts and circumstances of this case."
While Ruka v. Zierer, supra, deals with contributory negligence as distinguishable from primary negligence, the authorities generally do not distinguish between the two.
By the Court. — Judgment reversed. Cause remanded with directions to enter judgment in favor of Kevin Hron, dismissing the complaint as to him.