Curl v. Metoxen , 252 Or. 645 ( 1969 )

SLOAN, J.

Defendants’ car stalled as they were driving it along S. E. 86th Avenue in Portland. In an attempt to start it, defendant Victor Metoxen pushed the car backwards down the sloping street. Mary Metoxen was steering. While they were pushing the ear backwards, plaintiff, a nine-year-old boy, rode a bicycle around a nearby corner and on the wrong side of the street and collided with the car. In this action for plaintiff’s injuries the jury found for plaintiff. Defendants appeal from the ensuing judgment.

The critical ruling of the court, challenged on appeal, was the refusal of the court to rule that plaintiff was contributorily negligent as a matter of law. The court did not err. It was necessary for the jury to first decide from the somewhat conflicting evidence what plaintiff’s behavior had been and then to test it with respect to his age, experience and capacity. Simmons v. Holm et al, 1961, 229 Or 373, 397, et seq., 367 P2d 368.

A second assignment relies on an exception to an instruction on certain statutory rules. The exception, as stated to the court, indicated that the court had told the jury that a minor is not required to comply with the statutory rules. The exception was not well taken for the court had not so told the jury. The court properly instructed the jury to measure the child’s responsibility both as to conduct regulated by statute and by other rules of law. Simmons v. Holm, supra.

Affirmed.