Caudle v. Seaboard Air Line Railway Co.
163 S.E. 122
N.C.
1932
Check Treatment
ClabksoN, J.

We think there were sufficient facts alleged in the complaint to constitute actionable negligence, and the court below properly overruled the demurrer of defendant.

“If negligence on the part of the defendant is established and the jury should also find that the plaintiff was guilty of contributory negligence, on the ground that he was negligent in going into a dangerous position without being properly attentive to his own safety, the facts seem to require the submission of a third issue involving the question whether the defendant, in this instance, negligently failed to avail himself of the last clear chance of avoiding the injury. The authorities are to the effect that if the plaintiff is at the time rightfully upon the track or sufficiently near it to threaten his safety, and is negligent, and so brought into a position of peril, if the defendant company by taking a proper precaution and keeping a proper lookout could have discovered the peril in time to have averted the injury by the exercise of proper diligence, and negligently fails to do it, the defendant would still be responsible, though the plaintiff also may have been negligent in the first instance. Lassiters case, supra (133 N. C., 244); Reid's case, 140 N. C., 146; Balto. etc., Ry. Co. v. Cooney, 87 Md., 261.” Ray v. R. R., 141 N. C., at pp. 87-8.

*407 In Redmon v. R. R., 195 N. C., at p. 766, we find the following: “The last clear chance doctrine is the duty imposed by the humanity of the law upon a party to exercise ordinary care in avoiding injury to another who has negligently placed himself in a situation of danger. The doctrine is said to have sprung from the celebrated case of Davis v. Mann, 10 M. & W., 546, decided in 1842, and commonly known as the hobbled ass case. An excerpt from that case is as follows: ‘The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there.’ ” Deans v. R. R., 107 N. C., 686; Casada v. Ford, 189 N. C., 744; Hudson v. R. R., 190 N. C., 116; Hart v. R. R., 193 N. C., 317; Buchner v. R. R., 194 N. C., 104; Redmon v. R. R., supra, at p. 769.

In Russell v. R. R., 118 N. C., at p. 1108, it is said: “It is the duty of an engineer in charge of a moving train to give some signal of its approach to the crossing of a public highway over a railroad track or to a crossing which the public have been habitually permitted to "use; and where he fails to do so, the railway company is deemed negligent and answerable for any injury due to such omission of duty.” Perry v. R. R., 180 N. C., 290; Rigsbee v. R. R., 190 N. C., 231; Earwood v. R. R., 192 N. C., 27; Franklin v. R. R., 192 N. C., 717; Finch v. R. R., 195 N. C., 190; Moseley v. R. R., 197 N. C., at p. 634.

Prima facie presumption exists that an infant between ages of 7 and 14 is incapable of contributory negligence, but presumption may be overcame. Test in determining whether child is contributorily negligent is whether it acted as child of its age, capacity, discretion, knowledge and experience would ordinarily have acted under similar circumstances. Chitwood v. Chitwood, 156 S. E., 179, 159 S. C., 100; Hoggard v. R. R., 194 N. C., 256; Brown v. R. R., 195 N. C., 701.

As the cause goes back for trial before a jury, we will not comment on the law applicable to the facts alleged in the complaint. "We give the general principles of law arising on the facts as set forth in the complaint. The judgment below overruling the demurrer of defendant is

Affirmed.