On appeal from the Union County Court, Law Division.
For affirmance -- Justices Heher, Oliphant, Burling, Jacobs and Brennan. For reversal -- Chief Justice Vanderbilt and Justice Wachenfeld. The opinion of the court was delivered by Oliphant, J.
Plaintiff was the father of Richard Dillman, an infant of the age of 5 1/2 years, who was killed as the result of coming in contact with a motor vehicle owned by the defendant Bettie Frasia Mitchell and operated by the defendant Albert J. Marks, as he was crossing a street intersection in Elizabeth, New Jersey, on April 5, 1952.
Suit was brought by the plaintiff on behalf of the next of kin of the infant, the complaint alleging negligence on the part of the operator of the automobile. Marks, who admittedly was the agent of Miss Mitchell, was not served with process and was excluded from the case by the pretrial order. The answer filed on behalf of both defendants denied any negligence on their part and interposed the defense of contributory negligence on the part of plaintiff's decedent.
The trial in the Union County Court resulted in a verdict of no cause of action. An appeal was taken to the Superior Court, Appellate Division, and pending argument there we granted certification on our own motion under R.R. 1:10-1(a).
The main point raised by this appeal is that the trial court erroneously submitted to the jury the question of the contributory negligence of the deceased infant, and the appellant urges "That the law of this state should be that an infant 5 1/2 years of age is conclusively presumed incapable of contributory negligence." In support of the adoption of such a rule reliance is placed on Long v. Yellow Cab Co., 129 N.J.L. 560 (E. & A. 1943); Schneider v. Winkler, 74 N.J.L. 71 (Sup. Ct. 1906), and the assertion that the great weight of authority in other jurisdictions favors the conclusive presumption rule against negligence as to children 5 1/2 years of age.
In the Long case the infant was 2 1/2 years old and the former Court of Errors and Appeals held there was no
evidence of any negligence on its part, and the court therefore approved the trial court's refusal to charge contributory negligence but also adhered to the rebuttable presumption doctrine when it said "there is a presumption against contributory negligence on the part of an infant of the plaintiff's tender years." While it is true that in the Schneider case the former Supreme Court held that a child under the age of seven years could not be charged with contributory negligence, that holding was expressly disproved by the same court in Arivabeno v. Nuse, 12 N.J. Misc. 729 (Sup. Ct. 1934), in which case the plaintiff was an infant five years and ten months of age.
We cannot agree with the appellant as to the weight of authority in other jurisdictions. Six jurisdictions apply the conclusive presumption rule, often called the "Illinois Rule"; there is a conflict in a number of states, while at least 21 jurisdictions follow what has been termed the "Massachusetts Rule," that of a rebuttable presumption. Cf. Prosser on Torts (1941 ed.), p. 231; Restatement of the Law of Torts (Negligence), sec. 283; Annotations, 107 A.L.R. 8 and 174 A.L.R. 1080.
An exhaustive and able opinion on this question was written by Judge Jayne for the Appellate Division in Hellstern v. Smelowitz, 17 N.J. Super. 366 (App. Div. 1952), with which we are in entire accord. It was there stated:
"We resolve that the arbitrary rule which specifies that an infant under seven years of age is conclusively presumed to be incapable of contributory negligence does not exist in the law of this State."
Nor should it. The age of a child does not alone determine its capacity to care for itself and avoid dangers, and the law should not arbitrarily fix an age at which the duty to exercise some care begins. If reasonable men might differ as to the capabilities of an infant to understand, appreciate and avoid dangers to which he is exposed, then whether or not he was guilty of ...