Kiley, Fairchild and Sprecher, Circuit Judges.
This is a diversity case*fn1 resulting from an automobile accident which occurred on January 9, 1969, in Terre Haute, Indiana. Driving down an icy street on her way home from work, the defendant struck the six-year-old plaintiff as he was crossing the street. The plaintiff suffered a broken collarbone and several serious burns.
Plaintiff alleged that defendant was negligent in failing to keep a lookout and in failing to maintain control of her car in order to avoid the accident. The jury returned a verdict for the plaintiff and assessed damages of $25,000.
Defendant raises a number of issues which together present a challenge to the jury finding that defendant's negligence was the proximate cause of the accident.
Defendant first questions the Indiana rule that a child under seven years old is incapable of contributory negligence. Defendant attempted to place the question before the jury by (1) cross-examining the plaintiff as to his ability to cross streets safely; (2) calling as a witness plaintiff's kindergarten teacher, to testify about the traffic safety program in her class; and (3) tendering several instructions on contributory negligence. Each of defendant's attempts was thwarted by the trial court, which followed Indiana law that a six-year-old child cannot be contributorily negligent. Bottorff v. South Construction Co., 184 Ind. 221, 110 N.E. 977 (1916); Indiana Pattern Jury Instruction 5.25.
Defendant cites several recent Indiana and federal cases which she believes show a willingness of Indiana courts to consider a child's capability for negligence to be a question of fact. The court in Wozniczka v. McKean, Ind.App., 144 Ind. App. 471, 247 N.E.2d 215 (1969), held that the capacity of a five-year-old boy to understand the danger of a particular fire was a question of fact. The question was relevant to the determination of defendant's negligence in maintaining an attractive nuisance, however, and not to the possibility that the boy was contributorily negligent in approaching the fire. In Echevarria v. United States Steel Corp., 392 F.2d 885 (7th Cir. 1968), an eight-year-old with the mental capacity of a five-year-old was called non sui juris without discussion. But the common-law presumption defeats the defendant's argument that a five-year-old with a mental capacity of eight must therefore be capable of contributory negligence. Cases which apply traffic laws to minors have involved children over seven who were driving wheeled vehicles. The rationale of these cases does not dictate the application of pedestrian statutes to children under seven for the purpose of determining their negligence.*fn2 Ewing v. Biddle, 141 Ind.App. 25, 216 N.E.2d 863 (1966); Bixenman v. Hall, 141 Ind.App. 628, 231 N.E.2d 530 (1967), modified, 251 Ind. 527, 242 N.E.2d 837 (1968).
Defendant makes several plausible, even persuasive, arguments for a more flexible rule on the contributory negligence of minors. But such arguments should be addressed to the Indiana courts; the federal district court had no choice but to apply the well-established Indiana law.
In attempting to place evidence of plaintiff's or his mother's negligence before the jury, defendant's attorney offered to prove a conversation between plaintiff and his mother immediately before the accident.*fn3 The trial judge refused to allow the attorney to cross-examine plaintiff about the conversation on the ground that it was irrelevant. We believe this ruling was correct.
Certainly the conversation was irrelevant to plaintiff's negligence, since he was incapable as a matter of law of contributing to the accident. Any possible negligence by his mother in allowing plaintiff to cross the street by himself was immaterial, because a parent's negligence cannot be imputed to his child to defeat the child's cause of action. Evansville v. Senhenn, 151 Ind. 42, 47 N.E. 634, reh'g overruled, 51 N.E. 88 (1897); Gillam v. J. C. Penney Co., 341 F.2d 457 (7th Cir. 1965).
Defendant argues that the jury should have heard evidence of the mother's negligence because that negligence was the proximate cause of the accident. Again the evidence was irrelevant, because defendant can be held liable even if her negligence was not the sole proximate cause. Elder v. Fisher, 247 Ind. 598, 217 N.E.2d 847 (1966); New York Central R.R. Co. v. Cavinder, 141 Ind.App. 42, 211 N.E.2d 502 (1965). If plaintiff's mother contributed to the cause of the accident, that fact does not relieve defendant of liability since the jury found that defendant's negligence proximately caused plaintiff's injury.
Defendant disputes the sufficiency of the evidence to support the verdict. The reviewing court, of course, may not weigh the evidence; its duty is to determine whether the evidence most favorable to the appellee will sustain a jury verdict. There was evidence upon which the jury could have found the following:
When plaintiff left his house in the middle of the block, he saw defendant's car at the intersection to the north. He believed he could beat the car across the street. Reaching defendant's lane, he slipped and fell and could not get up again because the pavement was icy. An eyewitness testified that defendant had her head turned and was talking with a front-seat passenger. Plaintiff was dragged some distance under the car before defendant ...