and lined up to go to the small playground, and was observed by his brother Henry in the small playground shortly after 12:30 p.m. The only exits from the small playground were the gate at the southeast corner and the gap in the fence at the southwest corner. The playground supervisor testified that she concentrated her vigil on the gate and saw no one leave by that route. The two students who appeared as witnesses for the defendant both testified that they had left the playground through gaps in the fence. While no one testified that they saw the deceased leave the playground through the gap, there was sufficient circumstantial evidence to conclude that he did wander off in this manner, thus setting in motion the chain of events which led to his death.
Had the accident occurred at a location some distance from the school or some time after the child left the playground, then it might well be argued that the chain of events was broken by intervening causes. But here, the accident occurred 120 feet from the playground, only moments after the deceased wandered from the custody of the playground supervisor.
While it is undisputed that the deceased child ran impulsively into the street, the evidence also shows that the child had never before negotiated traffic by himself. In the past he had always been escorted to and from school by his mother or his 3 eldest siblings, and had never been allowed to play in the street. It was apparent that, at the time of the accident, he became bewildered and frightened and, in an attempt to hurry back to school, had dashed into the traffic. Such conduct was not unusual for a 5-year-old child suddenly alone and confronted for the first time with the task of crossing a busy street. Had it not been for the gap in the fence and the lack of sufficient supervision, the deceased would never have been in the vicinity of Constitution Avenue by himself. The jury was therefore justified in finding that the child's conduct was not an intervening cause of the accident.
In addition, it cannot be said that deceased's action constituted contributory negligence as a matter of law. "It is well settled doctrine in this jurisdiction that the question of whether a child of tender years has exercised such care as would reasonably be expected from a person of his age and capacity is a question for the jury, and to be determined by the circumstances of the particular case." Barstow v. Capital Traction, 29 App.D.C. 362, 373 (1907); Washington & G.R. Co. v. Gladmon, 82 U.S. 401, 15 Wall (U.S.) 401, 21 L. Ed. 114 (1872). The burden is on the defendant to prove contributory negligence by a fair preponderance of the evidence.
The jury was properly instructed on these matters, and concluded that the defendant failed to meet its burden. In view of the evidence, as already discussed, such a conclusion was not unreasonable.
In submitting each of the foregoing questions to the jury, the Court clearly emphasized that the jury was not to be influenced by any feelings of pity, and that, while there is natural sympathy for a mother who has lost a minor child in an accident of this nature, the jury is bound to determine this case in accordance with the rules of law. The Court further instructed that the mere fact that the infant was killed in the accident did not justify an award of damages to the plaintiff. The jury was further instructed that there is no presumption of negligence, but that, to the contrary, the burden is on the plaintiff to prove by a fair preponderance of evidence that there was negligence and that the negligence was the proximate cause of the injury. The Court emphasized that a trial is not a proceeding to see who, by strategic endeavor, seeks to gain the advantage, but rather is a search after the truth.
In summary, the District of Columbia School System had a duty of care to provide a safe playground for the deceased child. The questions of whether, in this instance, that duty was violated, whether such violation was the proximate cause of the accident, or whether the deceased child was contributorily negligent were proper matters of fact for the jury to decide on the evidence before them in this case. The jury was properly cautioned and instructed by the Court before making their decision, and there was ample evidence to support their verdict.
Defendant's motion is therefore denied.
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