81 S.E. 763 | N.C. | 1914
Action to recover damages for personal injuries, alleged to have been caused by defendant's negligence.
Plaintiff is a boy about 7 years old, and was, at the time he was hurt, a pupil at the graded school in Statesville. Defendant was engaged in widening Bell Street some 15 feet and constructing a culvert underneath it. Plaintiff contended that the work of widening the street had been completed and the street open for travel, the space between the head-walls of the culvert having been filled with dirt to the intended street level, and the sidewalks completed. That there were no barriers or guardrails on the head-walks, which capped ends of the culvert and from which there extended downwards to the lower land, about 15 feet, a sheer precipice. Plaintiff was going home with his playmates from the school, and stopped at the culvert. He was standing on or near the edge of the culvert or head-wall to the south, and either fell off or was pushed over it by a companion and dropped to the ground below and was injured.
(530) Defendant contended that the street work had not been finished; that there was no sidewalk on the south side of the street, but there was a concrete walk, which had been completed and was the one used by the public, including school children, on the north side, extending from Center to Mulberry streets, and that there never had been any walk on the south side. It also alleged that the head-wall on the south side was from 18 inches to 2 feet above the level of the dirt roadway, and was itself a barrier or guard. There was evidence to support these contentions. Plaintiff requested the court to instruct the jury that "if they *467 believed the evidence, they should answer the first issue, as to negligence `Yes.'" This was refused, and plaintiff excepted.
The court charged the jury, in part, as follows:
"1. If the city, in opening or repairing one of its streets or sidewalks for travel, has opened a part of said street for travel and is at work on the remainder — if you so find — then it must use reasonable care to guard passers-by along said street or sidewalk from injury by conditions existing on that part of said street or sidewalk not open for travel, by placing sufficient barriers to protect persons from injury in going over such street, provided the city has manifested its purpose to open such way and dedicate the same to the use of the public; and if it fails to use reasonable care in this respect, that is, the care of a prudent man under all of the circumstances, and a pedestrian is injured whilst traveling along such street, and such injury was proximately caused by the negligence of the city, the city would be liable for such damages as might ensue.
"2. It was the duty of the defendant to keep its streets, including its sidewalks, in proper repair, that is, in such condition that children and others in passing and repassing over them might at all times, when said streets have been opened for travel, do so with reasonable safety; and proper repair means that all bridges or culverts, dangerous pits, embankments, and like perilous places very near and adjoining the streets shall be guarded against by proper railings or barriers.
"3. If you find by the greater weight of the evidence that the (531) defendant employed Mr. Lazenby to construct the culvert along Bell Street, and that it caused Mr. Allison and others to raise Bell Street, at and near the said culvert, above the level of the surrounding ground, to a height of 10 feet or more at the culvert, and you find that said street was opened by the city for travel, and you find that it failed to place guard-rails or barriers along the said sidewalk, but left said street or sidewalk at said point unprotected, and you find that such failure on the part of the city was the proximate cause of the injury to the plaintiff, then the defendant would be guilty of negligence, and under such findings, if so made by you from the evidence, you would answer the first issue `Yes.'"
Issues as to negligence, contributory negligence, and damages were submitted. The jury having answered the first issue, as to negligence, "No," did not answer the other issues. Judgment upon the verdict, and appeal by plaintiff.
After stating the case: The plaintiff's counsel requested the court to charge the jury that the first issue should be answered affirmatively if they believed the evidence. This, if given, would of course be virtually a withdrawal of the fact involved in the main issue, as to negligence, from the finding of the jury, leaving them only to decide upon the credibility of the evidence. The form of the prayer, as we have frequently said, is not to be commended, as the jury may believe the evidence and yet not be willing to find that the fact of negligence has been established by it. Sossamon v. Cruse,
In order to give an affirmative answer to the first issue, the jury would be required to find two facts: first, that there was negligence, and, second, that this negligence was the proximate cause of the injury.Brewster v. Elizabeth City,
What was the duty of the defendant to the plaintiff in this case? A city does not insure or warrant the safe condition of its streets. It must keep and maintain them in a reasonably safe condition, and exercise ordinary care and due diligence to see if they are so kept and maintained. Smith v. Winston,
The record shows that the judge who presided at the trial of this cause charged the jury in exact accordance with the principle thus so clearly stated in that case, and which has since been approved so often.White v. New Bern,
In this case it appears that the concrete walk, which was used by the public, including school children, was on the opposite side of the street; at least there was evidence of this fact, that there was no sidewalk on the south side, and that there was a clear way for all persons (534) to pass and repass between the headwalls. It further appears that the head-wall on the south side was elevated above the street level, *470 so that in itself it formed a barrier on that side of the street. These and other facts and circumstances were for the jury to consider upon the question of negligence and proximate cause, and the judge fully explained their bearing from a legal standpoint upon the question at issue. His charge, in some respects, was really more favorable to the plaintiff than he had the right to expect, and he gave substantially all of plaintiff's requests for instructions to which he was, in law, entitled.
Upon the question of plaintiff's contributory negligence, he properly confined his charge to the second issue, which separately and independently involved an inquiry into that matter. As to the plaintiff's age and his incapacity arising out of his tender years, it may be said that the question of contributory negligence, on his part, is not to be determined alone by the fact of his youth, except in extreme cases; but other considerations enter into the question, as, for instance, his degree of capacity or intelligence. Some boys are much brighter, smarter, and more capable than others who are much older, and better able to take care of themselves. The youth of the person must be considered, of course, but with the qualification already made, it is not the only test, and the presumption of incapacity to protect himself is not always a conclusive one. This boy was intelligent and bright, as it appears from the evidence, and the jury could have inferred that, if left alone and not pushed or shoved over the edge of the head-wall by another, he would have been able to take care of himself and have escaped injury. The rule was thus stated by Justice Connor in Rolin v. Tobacco Co.,
(535) As the standard of care thus varies with the age, capacity, and experience of the child, it is usually, if not always, when the child is not wholly irresponsible, a question of fact for the jury whether a child exercised the ordinary care and prudence of a child similarly situated; and if such care was exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law exacts for determining what is ordinary care in a person of full age and capacity," citing Am. C. and F.Co. v. Armentrodt,
Labatt on Master and Servant (Ed. 1904), sec. 348, says that "the essential and controlling conception by which a minor's right of action is determined with reference to the existence or absence of contributory *471 fault is that his capacity is the measure of his responsibility. If he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him if he unwittingly exposes himself to that danger. For the exercise of such measure of capacity and discretion as he possesses, he is responsible."
The rule generally approved, and which has been adopted by this Court, was thus stated in R. R. v. Gladmon, 15 Wall. (U.S.), 401 (
It was said in R. R. v. Stout, supra: "To entitle an adult to recover damages for an injury from the fault or negligence of another, he must himself have been free from fault; but such is not the rule in regard to an infant of tender years. The care and caution required of a child is *472
according to his maturity and capacity only, and this is to be determined by the circumstances of each case." In that case the child was between 6 and 7 years of age, and the rule of the Gladmon case was applied. So it was said in Westerfield v. Lewis, supra (child 5 years and 7 months): "The rule which exempts a child of tender years from responsibility, while it may not operate justly in every possible case, on the whole promotes the ends of justice, and we followed the authorities which held that a child of the age of appellant is prima facie exempt from responsibility, but testimony is admissible to show the contrary," citing many authorities. And the same doctrine was applied in Stone v. Dry Dock Co.,
It will be found that in several of the cases we have relied on, the child in question was younger than was plaintiff in this case at the time of the injury. Unless the child be extremely young, so that we can say, without doubt, that he is incapable of committing an act of negligence, the question should be submitted to the jury to decide according to his age, intelligence, and capacity, and the particular facts and circumstances of the case which may shed any light upon it. There are facts in this case from which the jury could infer that plaintiff had capacity sufficient to care for himself.
The question of proximate cause was properly submitted to the jury for their determination, and was not a pure question of law upon the facts. It was for the jury to say whether it could reasonably have been anticipated that injury would result to the plaintiff from the then critical condition of the street. The fact was not so conclusively established *473
against the defendant as to require its withdrawal from the jury. Wheelerv. Gibbon,
The jury, under correct instruction, have found that defendant (538) was not guilty of negligence, and it, therefore, was not necessary to consider the second issue, but we have discussed the question of plaintiff's capacity because of the position taken by plaintiff, on the argument, in regard to it.
The case of Drum v. Miller,
No error.
Cited: McAtee v. Mfg. Co.,
