Christian

Plaintiffs sued for personal injuries received to the minor plaintiff when defendant’s automobile struck him while crossing the street; one of the affirmative defenses was the contributory negligence of the child. The matter was heard by a jury, and judgment on the verdict was entered in favor of defendant; thereafter plaintiffs ’ motion for new trial was granted on the sole ground of error in law—the trial court’s failure to instruct the jury that the minor plaintiff was incapable of contributory negligence as a matter of law. Defendant appeals from the order granting a new trial. The only issue before us is whether the trial court erred in holding, in effect, that a child of 4 years and 7 months of age is incapable of contributory negligence as a matter of law. It is contended by appellant that the infant’s contributory negligence is a matter to be determined by the jury under proper instructions relating to the child’s age, mental capacity and experience, and due care.

This case comes to us on an agreed statement. There appears to be some conflict in the evidence but for our purpose it is necessary to relate only that in which there is virtually no dispute. The minor…