Golden v. Register

274 S.E.2d 892 (1981)

Mary GOLDEN; Administratrix of the Estate of Clifford Franklin Golden, v. Randy REGISTER and Robert Tyndall.

No. 803SC533.

Court of Appeals of North Carolina.

February 17, 1981.

*893 Kennedy W. Ward, New Bern, for plaintiff-appellant.

Ward & Smith by John A. J. Ward and Stith & Stith by F. Blackwell Stith, New Bern, for defendants-appellees.

CLARK, Judge.

In determining whether the trial court erred in granting the defendants' motion for directed verdict, we elect first to direct our attention to the question of contributory negligence on the part of Frankie Golden, deceased, because this question is conspicuously raised by the evidence in the record on appeal. In doing so we do not concede or infer that there was sufficient *894 evidence to warrant submission to the jury of the issue of negligence by the defendants, or either of them.

And in first going directly to the contributory negligence issue, we do not consider whether the trial court erred in ruling that there was no actionable negligence by defendants for violation of G.S. 110-6, which prohibits the employment of youths under 16 years of age for farm work in and around power-driven machinery. However, we note that G.S. 110-6 was repealed by the Wage and Hour Act of 1979 (Ch. 839), effective 1 July 1979, and is now supplanted largely by G.S. 95-25.5 and G.S. 95-25.23. We note too that G.S. 95-25.14 now totally exempts workers engaged in agriculture from the requirements of the Wage and Hour Act of 1979. Further, if defendant Tyndall violated G.S. 110-6, which was then still in effect, by employing 14-year-old Frankie Golden in the summer of 1974 to work on his tobacco harvester, the plaintiff would still have the burden of proving proximate cause, the causal connection between the statutory violation and Frankie's death from being crushed by the truck at a time when Frankie was not engaged in doing the work which he was employed to do.

It appears obvious to us that Frankie Golden was contributorily negligent as a matter of law, and that the directed verdict for defendants was properly entered.

The deceased was 14 years of age at the time of his death, having attained that age on 1 November 1973. He did not have the benefit of the established rule that a person between the ages of seven and fourteen is presumed to be incapable of contributory negligence and may not be held contributorily negligent as a matter of law. Weeks v. Barnard, 265 N.C. 339, 143 S.E.2d 809 (1965); Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966). After reaching the age of 14 there is a rebuttable presumption that the youth possessed the capacity of an adult to protect himself, and he is therefore presumptively chargeable with the same standard of care for his own safety as if he were an adult. Welch v. Jenkins, 271 N.C. 138, 155 S.E.2d 763 (1967); Edwards v. Edwards, 3 N.C.App. 215, 164 S.E.2d 383 (1968); 9 Strong's N.C. Index, Negligence, § 18. In the case sub judice there was no attempt to rebut the presumption of the deceased's capacity to exercise due care for his own safety, or to show that he was lacking in the ability, capacity, or intelligence of the ordinary 14-year-old boy.

In determining whether Frankie Golden was contributorily negligent as a matter of law, we find particularly significant the evidence tending to show the following: Frankie had worked on a farm during the summer of 1973, earning $20.00 per day. For three weeks prior to his death on 18 July 1974 he had worked for defendant Tyndall. He and his young fellow workers had been warned of the danger of skiing behind and under the ¾-ton truck. The operation of the truck in the loading of the tobacco racks, hauling them away from the harvester, and returning to the harvester loaded with empty racks was done routinely and Frankie knew or should have known how the truck approached and circled the harvester, stopped, and backed up near the harvester for unloading. In defiance of a warning or warnings, Frankie and his companion, Michael Foreman, began skiing when the truck was about 500 feet from the harvester; Michael lost his grip and fell from the slow-moving truck without injury. Frankie continued skiing as the truck circled the harvester and stopped.

We think it is clear that Frankie knowingly engaged in hazardous horseplay; that he could have released his hold and stopped skiing at any time without injury to himself; that he continued in the dangerous conduct as the truck neared and circled the harvester until it stopped to back up. It does not appear from the evidence whether Frankie lost his grip and fell under the wheel of the truck or intentionally released his grip and attempted to crawl from under the truck when it stopped. In either event it is manifest that he failed to use due care for his own safety, and his contributory negligence bars recovery.

Affirmed.

HEDRICK and ROBERT M. MARTIN, JJ., concur.