Toetschinger v. Ihnot

I respectfully dissent. In my opinion four alternative bases for reversal are present. The first is the trial court’s failure to instruct the jury that the likely presence of children is a factor to be considered in determining the standard of care. The second is the use of the emergency instruction. The third is that the evidence in this case is insufficient to allow a jury to find negligence on the part of the plaintiff. The fourth is the unnecessary continuation of the archaic rule followed in our state that a 5-year-old child can be held negligent in an auto-pedestrian accident.

A. The…