Bevan Ex Rel. Bevan v. Carter
186 S.E. 321
N.C.
1936
Check Treatment
Stacy, C. J.

Was it competent for the defendant to express the opinion that there was no possible way for him to avoid hitting the plaintiff? The authorities say, “No.”

In Jeffries v. R. R., 129 N. C., 236, 39 S. E., 836, the following question, propounded to the engineer of the railroad company, was held to be objectionable: “After you saw the child, was anything not done that could have been done to save the child?” Likewise, in Phifer v. R. R., 122 N. C., 940, 29 S. E., 578, a new trial was ordered because the plaintiff was asked, “Were you careful?” and was allowed to answer, “Tes, I was careful.” This was the very question the jury was impaneled to decide. Stanley v. Lbr. Co., 184 N. C., 302, 114 S. E., 385; Raynor v. R. R., 129 N. C., 195, 39 S. E., 821.

Second: Was it proper to submit to- the jury the contributory negligence of the plaintiff? The answer is, “No.”

It was said in Campbell v. Laundry, 190 N. C., 649, 130 S. E., 638, “A child 4 years old is incapable of negligence, primary or contributory.” Furthermore, there is no plea of contributory negligence. C. S., 523. Nor would such a plea avail as against a four-year-old plaintiff. Jordan v. Asheville, 112 N. C., 743, 16 S. E., 760.

New trial.