#### Arnold Franklin HUMPHREY, Jr., Appellant, v. CITY OF HOMESTEAD, a municipal corporation, Appellee.

No. 68-1034.

District Court of Appeal of Florida. Third District.

June 10, 1969.

Rehearing Denied July 30, 1969.

Highsmith & Ezzo, Miami, for appellant.

West & Goldman, Miami, for appellee.

Before PEARSON, HENDRY and SWANN, JJ.

PER CURIAM.

The sole point raised and argued by the appellant on this appeal is:

> “Whether the court erred as a matter of law in instructing the jury on the issue of the negligence of the child’s mother when there existed no evidence upon which to base such a charge.”

We must determine then only the question of whether there was evidence in the record to support the charge. See Wynne v. Aside, Fla.App., 1964,163 So.2d 760.

The facts pertinent to the mother’s conduct are as follows:

Mrs. Humphrey, the mother of the minor, was a school teacher and had been at school on September 1, 1966, until 3:30 P. M. Tina, age three, was left in care of her sixteen year old daughter, Theresa.

After stopping at a grocery store, Mrs. Humphrey proceeded home, where all her children were on the family porch. Theresa, who had previously been entrusted with caring for Tina was going shopping and Mrs. Humphrey said she did not send Tina with Theresa since “I wanted to watch her myself.” As Mrs. Humphrey entered the house Theresa left with her boyfriend and her son, Arnold, age 14, was busy folding papers for his newspaper route. She did not instruct any of the children to watch Tina or entrust her care to them. She stated “I just left the children on the porch.” She was putting away the groceries for a few minutes and was unaware *740of where the children were at this time. As she called for Arnold, she heard a screech [of tires] and learned of the accident.

Tina, the three year old daughter, was killed in the accident. She apparently had gone across the street to a vacant lot with another minor for a few moments to play and had then run into the street suddenly and without warning. She was struck by a truck owned by the defendant city.

39 Am.Jur. Parent and Child, § 46 states:

> “* * * A parent in the immediate control of a child of tender years who is too young to be capable of exercising any self-reliant care for its own safety is responsible for its preservation from hazards, and it is the parent’s duty to watch over such child and to guard it from danger. In such case, the parent may be regarded in a sense as a repositary of a trust to nurture and protect his offspring. Parents are, of course, not required to do the impossible in caring for their children. As a rule, however, they are bound to provide such reasonable care and protection as an ordinarily prudent person, solicitous for the welfare of his child, would deem necessary. * * * ”

> 

In 25 Am.Jur. Highways 231, it is reported :

> 

> “Effect of Negligence of Parent or Custodian. — It is the duty of parents and custodians of children who are non sui juris to use reasonable care to protect them against the known hazards incident to their presence on a street or other public way, and to permit or suffer such a child to go or be upon a highway unattended may constitute negligence on the part of the parent or custodian, although it does not do so under all circumstances. Various factors, such as the age, capacity, or physical condition of the child, the economic or social status or position of the parents, the amount and character of traffic on the street, knowledge on the part of the parents of the presence of the child in the street, and precautions taken by them for the safeguarding of the child, may enter into and control the determination of the question. The question is ordinarily one of fact. * * *”

> ******

In applying these general rules “it is a question of fact for the jury to decide whether such lack of supervision was negligence under all the circumstances.” Christiana v. Rattaro, 1947, 81 Cal.App.2d 597, 184 P.2d *682, 683.*In this case we feel sufficient circumstances were established to at least support the charge given. Theresa, the older girl had left. Arnold was busy with the pursuit of his own business. See Marchant v. Boston & M.R.R., 1917, 228 Mass. 472, 117 N.E. 824. Mrs. Humphrey did not instruct any of the children to watch Tina when she went inside the house.

We do not here hold that the above conduct on Mrs. Humphrey's part was, or was not, negligence as a matter of law. We simply adhere to the general principle that “a trial court must instruct the jury on the law as to the conclusions that are legally deducible under the evidence and the issues, including conclusions that the judge himself would likely not reach if he were privileged to sit as a member of the jury.” Wynne v. Aside, supra,163 So.2d at 765.

For these reasons we find that the instruction given by the trial judge and challenged on this appeal was proper.

HENDRY, Judge

(dissenting).

I must respectfully dissent. In holding that sufficient evidence was shown by the record to support the jury charge here at issue, the majority has ruled, as a matter of law, that reasonable men can possibly find contributory negligence under the circumstances of this case. It is my opinion that a mother, temporarily entrusting her *741three-year-old daughter in the care of her two other children, one age sixteen, the other age fourteen, should not be contemplated in the eyes of the law as negligent.

Other reviewing courts in our sister jurisdictions have directly confronted similar factual patterns, and have resolved the issue of whether or not a parent was con-tributorily negligent, in favor of the parent: E. g., Schmeltzer v. New York Fire and M. Underwriters, Inc., La.App., 1968, 215 So.2d 133 (father of two and one-half-year-old child, who left child in care of fourteen year-old sister to play in front yard which was adjacent to neighbor’s driveway, held not contributorily negligent when neighbor backed car over two and one-half-year-old child); Helgason v. Hartford Insurance Company, La.App. 1966, 187 So.2d 140 (Mother who allowed seven-year-old child to be accompanied by nine year-old companion while going to circus and crossing various streets, held not contributorily negligent when child was struck by automobile while crossing street) ; see also Smith v. Preferred Risk Ins. Co., La.App.1966, 135 So.2d 857; Bergeron v. Houston-American Ins. Co., La.App., 1957, 98 So.2d 723, 724; Reid v. City Coach Co., 1939, 215 N.C. 469, 2 S.E.2d 578, 123 A.L.R. 140; Montoya v. Winchell, 1961, 69 N.M. 177, 364 P.2d 1041.

The state of Florida has not been entirely without cases in this area, and in the case of Winner v. Sharp, Fla.1949, 43 So.2d 634, the Supreme Court rendered an en banc opinion in which it was held that the mother of a child was not contributorily negligent by virtue of entrusting the child to an adult who allowed the child to walk near the edge of a highway, whereupon the child was struck by an automobile and killed. The court further stated:

> “Contributory negligence results from the mutual, concurring and contemporaneous negligence of the defendant and the plaintiff or their agents. A three year old is incapable of committing contributory negligence. When parents walk along the highways with their children they are not expected to carry them on a leash or to restrain them by force. They are required to exercise reasonable care for their safety and motorists are required to govern themselves accordingly.”

The record of the case sub judice indicates that the mother of this child used all reasonable and precautionary care that society could possible expect from her. I would not place the onus of constant surveillance and control upon the mother who is engaged in her everyday chores of homemaking ; moreover, reality dictates that entrusting the infant child to the care of her two adolescent siblings is not only a universal practice, but a reasonable and non-negligent one as well.

For the reasons above stated, I would reverse on the basis that there was no evidence before the court to sustain this charge to the jury.