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HERRELL v. PIMSLER

December 15, 1969

Jeffrey HERRELL, an infant, et al., Plaintiffs,
v.
Morton PIMSLER et al., Defendants



The opinion of the court was delivered by: YOUNGDAHL

 YOUNGDAHL, Senior District Judge.

 In this personal injury action the jury returned a verdict for defendants, Morton and Rosalind Pimsler. Plaintiffs, Jeffrey and Lee Herrell, now move for a new trial on the ground that the Court committed prejudicial error in instructing the jury that the doctrine of negligence per se with reference to traffic violations applied to minor plaintiff, Jeffrey Herrell. For the reasons stated below, plaintiffs' motion for a new trial is granted.

 It appears without dispute from the evidence in this case that on June 22, 1968 at about 4 P.M. defendant, Morton Pimsler, was driving a car owned by defendant, Rosalind Pimsler. Morton Pimsler was proceeding on East Capitol Street in the District of Columbia in a westerly direction. At about the same time minor plaintiff, 11 year old Jeffrey Herrell, was riding a bicycle on East Capitol Street in an easterly direction. The speed limit on East Capitol Street was twenty-five miles per hour. At the intersection of East Capitol Street and 8th Street, N.E. minor plaintiff began to move in a northerly direction across East Capitol Street and he and his bicycle were struck by the automobile driven by defendant, Morton Pimsler. The day was clear and the roads were dry.

 At the intersection in question were operating traffic control devices. From the evidence presented at trial it appears that minor plaintiff, at the time of the accident, was either making a left hand turn from East Capitol Street onto 8th Street or crossing from the southwest corner of the intersection to the northwest corner of the intersection. In addition, there was evidence consisting of testimony by minor plaintiff, defendant, Morton Pimsler, and an independent witness that at the time of the collision the light was green for traffic moving on East Capitol Street.

 At issue on this motion for a new trial is that portion of the Court's charge which explained to the jury the effect of any violations of applicable traffic regulations on the question of the possible contributory negligence of minor plaintiff. The Court first instructed the jury that a bicycle is a vehicle and therefore falls within the scope of the District of Columbia traffic regulations. *fn1" The Court then read to the jury certain traffic regulations requested by counsel for plaintiffs and defendants. Among the regulations read to the jury were those dealing with the proper method of making a left hand turn, *fn2" hand signals, *fn3" right of way, *fn4" and the applicability of traffic signals to persons riding bicycles. *fn5" After these regulations were set out the Court charged the jury that:

 
If on the issue of contributory negligence of the minor plaintiff, there is a violation of any of these regulations, that would constitute negligence on the part of minor plaintiff and if such negligence proximately concurred in the injuries which minor plaintiff sustained, then that would prevent his recovery unless the doctrine of last clear chance applies which I will explain to you now.

 It is to the above portion of the Court's charge that plaintiffs object. Plaintiffs contend that a child's contributory negligence even when related to violation of traffic regulation is to be measured by a limited standard of care, one which calls for the jury to take into consideration the age, education, training, and experience of minor plaintiff. *fn6" The Court so instructed the jury in discussing the common law standard of care for minors, but later, as stated above, in its charge told the jury that a violation of any of the traffic regulations by minor plaintiff, if proximately contributing to his injuries, would preclude recovery. The narrow question to be decided on this motion is, therefore, whether the Court erred in so instructing the jury.

 It is firmly established in this jurisdiction that violation of traffic regulations designed to promote safety is negligence as a matter of law where actions of adults are involved. *fn7" Our Court of Appeals has consistently held in personal injury cases involving vehicles that if an applicable traffic regulation is violated negligence has been established as a matter of law, thus leaving only the question of proximate cause to be decided. However, the Court of Appeals has never considered the import of the negligence per se rule as applied to violation of traffic regulations where minors are concerned. *fn8" The issue presented on this motion is, therefore, one of first impression in this jurisdiction.

 By its terms the traffic regulations of the District of Columbia apply to "every person". *fn9" However, this general applicability to all who are engaged in activities covered by the regulations does not necessarily determine in every case the issue of negligence when there is a violation. Because the regulations apply to every person does not, a fortiori, demand that a violation of any regulation be negligence as a matter of law. Thus, even though the traffic regulations apparently apply to minors as well as adults, the issue remains whether, in personal injury actions involving negligence, minors should be held to the same standard of care as adults where traffic regulations are involved although they are not so held under the common law.

 Counsel for both plaintiffs and defendants have not given the Court much aid on this difficult question in their respective memoranda supporting and opposing the motion for a new trial. Although there are no cases directly in point in this jurisdiction *fn10" several other jurisdictions have considered the precise issue before this Court and have come to differing conclusions.

 Under the same or similar circumstances as in this case the majority rule is that the common law doctrine imposing a lesser standard of care on minors than adults applies even where the minor has violated a traffic regulation. Such violation is not negligence per se but only one factor to be taken into consideration by the jury in determining whether a minor plaintiff is guilty of contributory negligence.

 For example, in Rudes v. Gottschalk *fn11" an eight year old plaintiff was involved in an accident with a motorist while pushing his bicycle across a controlled access expressway. The Supreme Court of Texas first noted that under the common law rule a minor is judged by the standard of a child and not that of an adult. After agreeing that the legislative regulation controlling crossing of highways in places other than crosswalks was a safety regulation it nevertheless concluded that "the conduct of a child is not to be judged by the standard of an adult simply because statutory negligence (negligence per se) is involved rather than common-law negligence." *fn12" The court further stated that this view was in accord with the "overwhelming weight of authority in the United States." *fn13"

 In Daun v. Truax *fn14" the Supreme Court of California discussed in detail its reasons for concluding that the doctrine of negligence per se, as to violation of traffic regulations, should not be applied to minors. Although that case dealt with a minor pedestrian rather than a minor bicycle rider the court's discussion is particularly relevant to those situations where minors are not engaging in ...


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