Brown v. Southern Railway Co.
143 S.E. 536
N.C.
1928
Check Treatment
Clarkson, J.

At the close of plaintiff’s evidence, defendants made á motion as in case of nonsuit, and at the close of all the evidence the motion was renewed. C. S., 567. The court below overruled the motions, defendants excepted and assigned error. We think the court below correct in the ruling. As oft repeated, the evidence is to be taken in the light most favorable to the plaintiff and he is entitled to the benefits of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.

As the case goes back for a new trial, we will not discuss the evidence, but, in our opinion, it is sufficient to be submitted to a jury.

Rufus Edwards, the boy that was killed by the defendant railroad company, on 29 November, 1925, was nearly eight years old. His mother testified that he would have been eight years old on 4 January, 1926.

The defendants, in their answer, plead contributory negligence. The court below charged the jury: “The court charges you that our courts have heretofore held that a child under eight years of age is incapable of committing contributory negligence.” Defendants duly excepted and assigned error.

We think the present case is similar to and governed by the case of Ghorley v. R. R., 189 N. C., at p. 635. It was there said: “It was earnestly insisted by defendants that, under the evidence, plaintiff’s intestate, a child seven years of age, was guilty of contributory negligence in walking on defendant’s track in front of a moving train, which caused her death, but we think the trial court was clearly correct in submitting the question to the jury, as he did. There was ample evidence to warrant the jury in finding that the engineer or fireman, in the exercise of reasonable care, could have seen, and should have seen, the little girl in time to have avoided the injury.” Alexander v. Statesville, 165 N. C., 527; Campbell v. Laundry, 190 N. C., 649; Hoggard v. R. R., 194 N. C., 256.

Chief Justice Clark wrote the opinion relied on by plaintiff in Ashby v. R. R., 172 N. C., 98. The headnote 2, gives the reason: “A lad 8 years of age, injured while assisting, at their request, the defendant’s employees in pushing a car loaded with cross-ties, and injured while endeavoring to jump on the car and ride across a cattle-guard, was too *702 young to be guilty of contributory negligence under the facts of tbis case.” That case was different from the present one.

The learned Chief Justice, in the concurring opinion, in Fry v. Utilities Co., 183 N. C., at p. 296-7, says: “In Baker v. R. R., 150 N. C., 565, above cited, this Court, in discussing the question of contributory negligence, and whether it was a question for the court or the jury, says: 'The responsibilities of infants are clearly defined by text-writers and courts. At common law, fourteen was the age of discretion in males and twelve in females. At fourteen an infant could choose a guardian and contract a valid marriage. After seven, an infant may commit a felony, although there is a presumption in his favor which may, however, be rebutted. But after fourteen an infant is held to the same responsibility for crime as an adult.’ And then this opinion adds almost in the same words of the later case of Foard v. Power Co., 170 N. C., 48, as follows: ‘We find in the books many cases where children of various ages, from seven upward, have been denied a recovery because of their own negligence.’ ” The learned Chief Justice then cites the Alexander case, supra, and other cases bearing on the subject. We refer to the cases cited for further discussion. For the reasons given, there must be a

New trial.