Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.
The infant plaintiff Michael, then 7 1/2 years old, was injured by a metal rod thrown by defendant Harvey Burch, Jr. (hereafter Harvey), then 5 1/2 years old. Michael and his parents sued Harvey and his parents for the resulting damages. Their action was dismissed at the end of the case, and they appeal.
One count of the complaint alleged, as against Harvey, that he "did negligently, carelessly and recklessly propel and throw the rod." Against Harvey's parents the complaint alleged that, having "notice and knowledge of his prior propensities" to throw things and strike other children, they "negligently, carelessly and recklessly supervised and controlled" Harvey, as a result of which he threw the rod and injured Michael. The pretrial order stated:
"* * * Plaintiffs contend that infant defendant, without any justifiable cause or reason, threw a sharp metal rod at the infant plaintiff, which struck him in the right eye. Plaintiffs allege negligence of the defendant in unjustifiably throwing the metal object and failing to take careful and proper precautions to avoid striking the infant plaintiff."
As to Harvey's parents, the pretrial order repeated the allegations of the complaint.
The trial court dismissed the complaint as to Harvey on the ground that plaintiffs failed to produce evidence sufficient to go to the jury to rebut the presumption that he did not have the capacity to recognize and abide by any standard of care, and therefore he could not be adjudged negligent. It dismissed the complaint as to the parents on the ground that there was insufficient proof of their negligence. We affirm as to the parents but reverse as to Harvey.
Michael testified that he, Bobby Muzyka (Bobby) and Harvey were playing a game called "knights in armor" on the lawn of Harvey's house. He described the game as follows: "We make believe we have little swords, and we were fighting against each other * * * we play fight though, we didn't
punch, or anything like that." He said he didn't remember whether they had any sticks or "anything like a sword" but he answered "no" to defendant's question, on cross-examination, whether "throwing something towards your feet" was part of the game.
Bobby went home, but Michael and Harvey continued the game. Then Harvey went into the garage of his home, picked up the metal rod, came to the front steps and, after saying to Michael "You asked for it," he threw the rod toward Michael, who was then standing "in the middle of the lawn." Michael testified that he and Harvey had no argument; that when Harvey went into his house, Michael considered the game as "still continuing"; throwing a rod was not part of the game, and he did not know why Harvey threw it. He said Harvey had never thrown anything at him before. While Michael was being taken for medical attention, Harvey said to him, "I'm sorry."
Harvey's mother, called as a witness by plaintiff, testified that Harvey had previously been involved in incidents "involving throwing of objects, stones," and that she had spoken to him on several occasions about it. When asked what she had said to him, she answered: "Like I have always told him, he shouldn't throw things and that little boys shouldn't do that, that although they might hit him, he should not throw back." When asked whether Harvey understood these instructions she answered, "I imagine he did."
Mrs. Muzyka, Bobby's mother, testified that she lived "three doors away and across the street" from the Burches and had seen Harvey "just about every day" for about two years before the accident. Harvey played with the Muzyka children. She said she considered Harvey "a bright boy" and "above average." However, she said Harvey was "always playing with rocks" and there had been many occasions, before the accident, when she had taken rocks and sticks away from Harvey. She had seen Harvey throw rocks at children ...