Nature of the Case
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Facts
P whose eighth birthday was on the day following the accident, was on his way home from a boxing lesson. The instructor had driven P and his brother to the street in front of their home, double-parking across from their home. The brother, who was a year older than P, ran across the street, followed almost immediately by the younger boy. P reached the middle of the street and saw D’s headlights, stopped, and then ran in an attempt to avoid being struck. D was unable to avoid hitting him. Plaintiff was hospitalized for several weeks and continued to wear a cast on his broken right leg for some time thereafter. P admitted that he had not looked before he ran into the path of the car. P knew he should check for traffic, he said that he had just forgotten. P admitted to having received some instruction on pedestrian safety, including the traditional stop, look, and listen. D alleged that P's own negligence was the proximate cause of his injury. The district court granted D's motion for summary judgment. P appealed contending that P lacked the capacity to be contributorily negligent. D contends that P was contributorily negligent as a matter of law because of violation of statutory requirements governing pedestrian conduct.
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