533NE2d1210



	Kurowsky v. Deutsch, 533 NE 2d 1210 (1989). [Please click here to read the details behind this case and the opinion from the lower appeals court.] From the opinion of the Supreme Court of Indiana, vacating the decision by the Court of Appeals of Indiana, Second District and affirming the original judgment for the plaintiff from the trial court: "... The interest of persons riding bicycles upon public and private ways at their points of convergence are not distinct from such interests of those operating vehicles. These are common intersections requiring regulation. The duty to yield right of way is a just rule satisfying this need. Conduct violating the duty to yield would include the continuous motion and operation of a vehicle through the imaginary plane at the boundary of the highway and the private driveway. We therefore hold, in agreement with the trial court and the Court of Appeals, that there is a statutory duty upon bicyclists to yield when about to enter or cross a highway from a private driveway, and the instruction was a correct statement of the law in this regard. [...] "The burdens of proof and of coming forward with evidence do not change merely because the party alleged to be negligent is a child. However, consideration must be given to the possibility that the child may be of such tender years so as to be incapable of forming a desire to comply with the law. Thus, in a case where the noncompliance by a child has been shown, the burden rests with the child to come forward with evidence and show that 'he exercised that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level.' ... The special consideration due children in this context is provided for in this manner. The general format for instructions in cases involving adult noncompliance and child noncompliance, where proof of excuse or justification is offered, is the same. "Appellant contends in the case on appeal, that the Instruction No. 9 is an erroneous statement of the law, because it saddles him with a presumption of negligence and robs him of a presumption that he cannot be negligent. ... The instruction can be condemned on neither ground. ... Read together, the Bixenman and Davison cases hold that in a civil action for negligence if the evidence warrants it, a jury must be instructed that where a child has disobeyed a statute, he may excuse or justify the violation by sustaining the burden of showing the violation occurred despite his exercise of that degree of care which would ordinarily be exercised by a child of the same age, experience, intelligence and educational level. ..."

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