Price, Gaulkin and Sullivan. The opinion of the court was delivered by Price, S.j.a.d.
In an automobile negligence action plaintiffs seek to reverse a judgment entered on a jury verdict of no cause for action in the Superior Court, Law Division. Recovery of damages for personal injuries suffered by the minor plaintiff Jerome Dillard, a pedestrian, was sought. His father, Wallace H. Dillard, sued per quod.
Plaintiffs contend that the trial court erred in denying their motion, at the end of the entire case, to strike the defense of contributory negligence asserted against the minor plaintiff, whose age at the time of the accident was five years and three months. The court left the issue of contributory negligence to the jury for decision.
Plaintiffs also challenge, as inadequate, the trial court's charge to the jury with reference to a section of the Motor
Vehicle and Traffic Act (N.J.S.A. 39:4-98(b), and, in addition, contend that the verdict was against the weight of the evidence.
The accident occurred on Southard Street in Trenton on March 30, 1959 at 6:30 P.M. It was a dark, rainy evening. Jerome, attempting to cross from the western to the eastern side of the street, suffered severe personal injuries when struck by an automobile operated by defendant in a northerly direction on said street. At the time of the accident the child was alone. He lived at 27 Southard Street in a house located on the western side thereof. Shortly prior to the accident he had been with his parents at a laundromat across the street from their house and had wandered away from them and returned to his home. They did not miss him until after the accident occurred. A neighbor of plaintiffs testified that, although she had not seen defendant's car strike the boy, she was seated at the time in an automobile parked in front of 33 Southard Street and, immediately prior to the accident, had seen Jerome come "out of his house" and then run easterly across the sidewalk "toward the street."
Defendant's version of the accident was that he was proceeding northerly on Southard Street, a two-lane road, at about 10 to 15 miles per hour. His headlights were on low beam and his windshield wipers functioning. He described the accident as follows:
"* * * I just was proceeding up the street, and all of the sudden I more or less caught a glimpse of something, and I wasn't sure, and I hit it almost instantaneously at the time that I had seen it, and I realized I hit the boy and I slammed my brakes on immediately and turned to the right to avoid going over him, * * *."
Defendant further testified that he did not see the boy until the latter was directly in front of the car; that the youngster was struck by the front of the vehicle at a point between the left front headlight and the center of the hood. The boy was thrown about ten feet and was rendered unconscious
by the impact. He had crossed the southbound lane of Southard Street and was in the act of crossing the northbound lane when he was struck.
We turn to an examination of the evidence on the basis of which the trial court held that the question of the boy's capacity for contributory negligence was for the jury. The proofs show that Jerome had attended kindergarten since September 1958. The school was a few blocks from his home. His eight-year-old brother took him to and from school each school day. The boys had to cross streets between their home and school. "Patrol boys" were stationed at the street corners. On cross-examination Jerome's mother testified that he was a "normal" child; that she had never taught him about crossing streets, but had told "him not to go in the ...