Johnson v. Butterworth

We have given consideration to the arguments advanced in a brief in support of application for rehearing. So far as the defense of assumption .of risk is concerned, it may be that we were in error in resorting solely to rather limited experience which we have had with very young children and in concluding from that experience that children of tender age are not customarily addicted to the habit of biting.

If it is the customary thing for such children to bite those who have charge of them, then the danger of being injured in this manner is a risk which a nurse may be said to assume when she accepts employment.

Whether such children customarily bite is a question of fact on which our present opinion would readily yield to proof, if, when the matter is tried below on the merits, the preponderance of the evidence establishes that such habits are customary and usual.

In our decree we remanded the case for trial on the merits, and there is therefore no necessity to recall or to amend that decree.

The rehearing requested is refused.

Rehearing refused.