Moores ex rel. Moores v. Vandoren ( 1971 )

PER CURIAM.

A minor plaintiff pedestrian, age four years and nine months, was struck by defendant’s vehicle. The familiar negligence issues were submitted to the jury and it returned a verdict in favor of defendants. More specifically, the trial court recognized the defense of contributory negligence aimed at the minor plaintiff and charged the jury accordingly. This was harmful error.

Subsequent to the trial of the instant case, the Supreme Court of Florida in Swindell v. Hellkamp, Fla.1970, 242 So.2d 708, held that any child under six years of age is conclusively presumed to be incapable of committing contributory negligence.

Under these circumstances, the appealed judgment is reversed and the cause remanded for a new trial to be conducted in accordance with the requirements of the Swindell case, supra.

Reversed and remanded.

WALDEN, OWEN and MAGER, JJ, concur.