#### Linda Sue SWINDELL, a minor, by and through her mother and next friend, Nadine Swindell, and Nadine Swindell, individually, Appellants, v. Donald G. HELLKAMP and Jesse Ramirez, a minor, Appellees.

No. 69-98.

District Court of Appeal of Florida, Fourth District.

Feb. 25, 1970.

Rehearing Denied March 23, 1970.

John T. Carlon, Jr., of Coker & Carlon, Fort Lauderdale, for appellants.

Dieter K. Gunther, of Carey, Dwyer, Austin, Cole & Selwood, Fort Lauderdale, for appellees.

REED, Judge.

This is an appeal by the plaintiff from an adverse final judgment entered by the Cir*187cuit Court of Broward County, Florida, on 5 November 1968 in a personal injury action. The case was tried before a jury on the issue of liability only. The jury returned a verdict in favor of the defendants.

The complaint alleges that the minor plaintiff, Linda Sue Swindell, was struck and injured by an automobile on 30 September 1966. At the time of the accident the minor plaintiff was four years and seven months of age. The automobile was driven by one Jesse Colberto Ramirez, then age 17, and owned by the defendant Donald Hell-kamp. The adult plaintiff in this case, Nadine Swindell, is the mother of Linda Sue Swindell. The evidence indicates that Linda ran across the street after having emerged from behind a row of shrubs and was struck by the front of the automobile driven by Ramirez.

The points presented by the appellants are, as stated in their brief:

> “Point I. Whether a minor child 4 years, 7 months old can be guilty of contributory negligence as a matter of law.”

> “Point II. Whether the court erred in failing to instruct the jury that a minor operating a motor vehicle is held to adult standards in such operation.”

Under Point I the appellants argue *without reference to any of the facts surrounding the minor plaintiff and her accident*that she is not chargeable with contributory negligence because as a matter of law a child four years seven months of age cannot be guilty of contributory negligence. With this as a premise, the appellants assert that the trial judge committed reversible error in not granting their motion for a directed verdict as to the issue of the child’s contributory negligence which was pled as an affirmative defense. Basically what the plaintiffs are asking this court to do is to lay down a rule *as a matter of policy*which would have the effect of exempting from contributory negligence all children four years seven months of age.

Plaintiffs’ approach has been rejected in Turner v. Seegar, 1942, 151 Fla. 643, 10 So.2d 320. In that case the Florida Supreme Court held that it was proper for the trial court to have allowed the jury to determine whether or not a child “nearing six years” was contributorily negligent. The court there said, quoting the earlier case of Dupuis v. Heider, 1934, 113 Fla. 679, 152 So. 659, 661.

> “ ‘Age is not the determining factor always on the question of the capability of exercising care. If a person is capable, by reason of mentality, intelligence, experience, training, discretion, alertness, *of exercising care in a■ given situation,*he is amenable to the consequences of his contributory negligence in a transaction resulting in his injury.’ ” (Emphasis added.)

Under this rule the duty of the trial court in dealing with the issue of a child’s contributory negligence is to determine by reference to the criteria mentioned above whether or not a jury of reasonable men could reasonably differ on the question of the child’s capacity for exercising any self-protective care *with respect to the particular circumstances before the court.*If it appears that the child unquestionably had no capacity for exercising such care in the circumstances, then of course the trial judge may take the issue from the jury and decide it as a matter of law; however, where jurymen could reasonably disagree on the point, the issue, like any other issue of ultimate fact in a negligence case, should be submitted to the jury with proper instructions. Of necessity, the trial court’s handling of this issue cannot be reversed by an appellate court unless error is clearly shown. Such is not the case here. The present record indicates that the minor plaintiff had received instructions from her mother regarding the hazards of traffic; therefore, a jury could reasonably have concluded that she had some capacity for exercising care. The question as to whether or not she exercised that degree of care *188which the law requires of a child was properly for the jury.

The editor’s comment in the Restatement of Torts, Second, § 283A at page 15, supports our view. It states:

> “ * * * The prevailing view is that in tort cases no such arbitrary (age) limits can be fixed. Undoubtedly there is a minimum age, probably somewhere in the vicinity of four years, below which negligence can never be found; but with the great variation in the capacities of children and the situations which may arise, it cannot be fixed definitely for all cases.”

The appellants *do not*contend that the trial court’s instruction with respect to the standard of care appropriate for a child was erroneous. The instruction which the trial court gave was Florida Standard Jury Instruction 4.4 and was in fact requested by the plaintiffs.

The plaintiffs rely on the case of Winner v. Sharp, Fla. 1949, 43 So.2d 634, 636, wherein the court in dictum stated that a three year old child is not capable of contributory negligence. The dictum in the Winner case may well be correct, but it simply does not apply to the facts of our case where the record showed that the child was over four years and had instruction in connection with the hazards of traffic.

Likewise we see no merit in the second point which the appellants raise. The trial court instructed the jury properly on the standard of adult care which was applicable to the defendant Ramirez in the operation of the automobile. Had the trial judg-e charged the jury that a minor is held to an adult standard in operating an automobile this would have been nothing but surplusage even though the underlying proposition of law is correct as an abstract principle. See Medina v. McAllister, Fla.1967, 202 So.2d 755.

The judgment appealed from is affirmed.

WALDEN, J., concurs.

CROSS, C. J., dissents, with opinion.

CROSS, Chief Judge

(dissenting).

I must respectfully dissent.

The majority today overlooks a rare opportunity to clarify an area of the law which has been in all jurisdictions one of difficulty and confusion.

The difficulties and confusion which attend any theoretical investigation of the basic contributory negligence doctrine complicate any attempt to rationalize the special rules which have developed as to contributory negligence in children. The degree to which children should be held liable to be charged with contributory negligence may depend to a large extent upon whether the basic doctrine is regarded as being a special application of theories of proximate causation, or is being based upon a desire to “punish” the negligent plaintiff for deterrent or other purposes. Whatever the logical justification for the position taken by the courts, there appears to be no doubt that children are accorded special status in applying the normal rules of contributory negligence, and that this special status is normally justified on the ground that they have less capacity for self care than an adult, and accordingly, it would be improper and inequitable to hold them to the same standard. Clearly, there is an age beneath which it becomes absurd to speak of contributory negligence in a child. No court would apply such a concept to a babe in arms or, presumably, to a creeping or toddling two-year-old. On the other hand, most courts would agree that a nineteen-or-twenty-year-old, usually licensed to operate a motor vehicle and frequently owning his own, should in most circumstances be held to an adult standard of care for the safety of himself and others. Between these two areas, however, attempts to lay down any firm rule as to the age at which a child is incapable of con-*189tributary negligence has not been determined with any degree of certainty in this state, nor for that matter, in most jurisdictions.

The age of a child is of significance primarily as a sign or mark of his mental capacity to understand and appreciate the perils that may threaten his well-being. The courts recognize that at least at some point during the early stages of infancy a child is incapable of contributory negligence as a matter of law. The divergence exists as to a definite or fixed age that is sufficient to constitute a child sui juris and to charge it with contributory negligence. 98 Am.Jur., Negligence, § 205; 65A C.J.S. Negligence § 145.

In criminal cases the courts of this state follow the common law wherein it was well established that a child under the age of seven is conclusively presumed to be incapable of committing a crime. The common law rule raises a presumption of incapacity of an infant between the ages of seven and fourteen, and the presumption is that the incapacity after seven years of age decreases with the progress of his years. Clay v. State, 1940, 143 Fla. 204, 196 So. 462.

In Dupuis v. Heider, 1934, 113 Fla. 679, 152 So. 659, the supreme court through dictum asserted that there was little, if any, support for the analogy between the law respecting the capacity to commit a crime and at what age the infant would be considered to be capable of contributory negligence. Be that as it may, I would hold that as a matter of law a child under the age of seven years is incapable of contributory negligence, not because of the analogy to the criminal law that a child under that age is not capable of committing a crime, but because a child under seven years of age lacks the discretion, judgment and mental capacity to discern and appreciate circumstances of danger that threaten its safety. This rule has been applied in the following jurisdictions: Mobile Light & R. Co. v. Nicholas, 1936, 232 Ala. 213, 167 So. 298; Romine v. City of Watseka, 1950, 341 Ill.App. 370, 91 N.E.2d 76; Moser v. East St. Louis & Interurban Water Co., 1945, 326 Ill.App. 542, 62 N.E.2d 558; Wolczek v. Public Service Co., 1930, 342 Ill. 482, 174 N.E. 577; Fuller v. Thrum, 1941, 109 Ind.App. 407, 31 N.E.2d 670; Ward v. Music, Ky.1953, 257 S.W.2d 516; United Fuel Gas Co. v. Frend’s Adm’x, Ky.1954, 270 S.W.2d 946; Gilligan v. Butte, 1946, 118 Mont. 350, 166 P.2d 797; Sexton v. Noll Construction Co., 1918, 108 S.C. 516, 95 S.E. 129.

In an annotation in 77 A.L.R.2d 917, beginning at page 923 there is illustrated a long list of decisions from many jurisdictions wherein a conclusive presumption of incapacity as to age has been recognized. In none of the cases is a child under the age of seven years considered capable of contributory negligence.

The majority dwells on the fact that the minor plaintiff had received instructions from her mother regarding the hazards of traffic. What child is not told by his parents not to run into the street to play? Does this instruction alone impart to the child discretion, judgment or mental capacity to discern and appreciate circumstances of danger that threaten its safety? I think not. The fallacy of the argument of the majority can be illustrated by merely looking to our public school system. By statute, Chapter 232, our legislature requires all children who have attained the age of seven years to compulsory attendance in public schools. It is really at this point in their life that children begin to have the intelligence and judgment to discern and appreciate life’s dangers, particularly with reference to traffic, for this is actually the first time in their lives that they travel on a daily basis as pedestrians, as passengers in motor vehicles and on buses operated by the schools and by public utilities. They are more or less compelled at the age of seven to become active participants in society, and to discern and appreciate what dangers may be encountered.

*190Since the application of the doctrine of contributory negligence is the result of public policy in order that all individuals may remember their own situations and be responsible for their own acts, the doctrine should have no application to a child of tender years under the age of seven, since it is not compelled by public policy prior to this time to become an active, discerning and intelligent member of our society through the learning process.

I would reverse the judgment of the lower court and hold that as a matter of law a child under seven years of age is incapable of contributory negligence.