Morris ex rel. Morris v. Sprott

ScheNCK, J.

We think bis Honor’s bolding, as a matter of law, tbat a child of seven years of age is incapable of being guilty of contributory negligence is in conflict with tbe decisions of tbis Court, which are to tbe effect tbat contributory negligence on tbe part of a child is to be measured by bis age and bis ability to discern and appreciate tbe circumstances of danger; and is not chargeable with tbe same degree of care as an experienced adult, but is only required to exercise such prudence as one of bis age may be expected to possess; and tbis is usually, if not' always, when tbe child is not wholly responsible, a question of fact for tbe jury.

Rolin v. Tobacco Co., 141 N. C., 300 ;

Alexander v. Statesville, 165 N. C., 527 ;

Fry v. Utilities Co., 183 N. C., 281 ;

Ghorley v. *360 R. R., 189 N. C., 634 ;

Hoggard v. R. R., 194 N. C.; 256; and Tart v. R. R., 202 N. C., 52 .

We are not unmindful of the case of Ashby v. R. R., 172 N. C., 98 , relied upon by the plaintiff. In this case tbe plaintiff was a child of eight years of age, and the last sentence of the opinion reads: “Contributory negligence cannot be attributed to- a child of the age of the plaintiff at the time of this injury.” However, this Court has recently distinguished, if not overruled, the above-quoted utterance in the case of Brown v. R. R., 195 N. C., 699 . Certainly, if the sentence quoted is read without strict reference to the facts of the case it is in conflict with the universal holding of this Court in other cases where contributory negligence has been pleaded as a bar to recovery by infants of seven years of age and upward.

Chief Justice Ciarle, who wrote the opinion in Ashby v. R. R., supra, in a concurring opinion in the case of Fry v. Utilities Co., supra, quoted with approval from Foard v. Power Co., 170 N. C., 50 , as follows: “We find in the books many cases where children of various ages, from seven years upward, have been denied recovery because of their own negligence.” This assertion in the Foard case, supra (which actually reads six years instead of seven years), is followed by a citation of a long list of authorities. It is not at all improbable that the apparently inadvertent statement of the late learned Chief Jusiice in Ashby’s case, supra, misled the court below.

To the end that the defendant may have submitted to the jury an issue as to the contributory negligence of the plaintiff, under a charge in consonance with this opinion, we award a New trial.