Welch v. Jenkins

155 S.E.2d 763 (1967)

271 N.C. 138

Harry Alan WELCH, a minor, by His Next Friend, M. R. Johnson, Plaintiff, v. Jim Ervin JENKINS and Flake B. Chipley, Inc., Defendants.

No. 618.

Supreme Court of North Carolina.

July 24, 1967.

*766 Pittman, Staton & Betts, Sanford, for plaintiff appellant.

Gavin, Jackson & Gavin, Sanford, for defendant appellees.

SHARP, Justice.

After defining contributory negligence and explaining that if the negligence of both plaintiff and defendants concurred as proximate causes of plaintiff's injuries, he could not recover, the court charged the jury as follows:

"Now it becomes necessary to consider what duty or duties the law imposed upon the plaintiff in the riding of his bicycle upon the highway. In the first place, the law requires the plaintiff to keep a reasonable and proper lookout for other vehicles on the highway, and to have reasonable and proper control of his bicycle, which, in law, is considered a vehicle, such reasonable and proper lookout and control as a person of ordinary prudence would have had and kept under the same or similar circumstances. The law also imposed upon the plaintiff the duty to exercise due care for his own safety, due care being that degree of care which a person of ordinary prudence would have used under the same or similar circumstances. Another duty imposed upon the plaintiff arises out of a statute which provides that the driver of a vehicle and I pause here to say that when it uses the term driver of a vehicle, that includes a person riding a bicycle: "`The driver of a vehicle about to be overtaken and passed by another vehicle approaching from the rear shall give way to the right in favor of the overtaking vehicle on suitable and audible signal being given by the driver of the overtaking vehicle.' * * * * * * "(S)o that if you find from the evidence that the defendant Jenkins gave an audible and suitable signal by blowing his horn, then and in that event, it would have been the duty of the plaintiff to give way to the right and allow the defendant to pass. But if you find that no suitable or audible signal was given by the defendant before attempting to pass then that statute would not have any application. But whether that statute has application or not, it was the duty of the plaintiff, in the operation of his bicycle, to do so in a reasonable and careful manner and to make no movement of it on the road by turning from left to right which a person of ordinary prudence similarly situated would not have made."

The foregoing portion of the charge is the subject of plaintiff's assignment of error No. 17. Plaintiff also assigns as error the failure of the court to instruct the jury (1) "that a different rule should be applied in considering the question of contributory negligence in the case of the plaintiff, a 14-year-old child, from that applicable in the case of an adult"; and (2) "that the plaintiff was not chargeable with the same degree of care as an experienced adult but only required to exercise such prudence as one of his years may be expected to possess." (Assignment of error No. 23.)

In determining whether a child is contributorily negligent in any given situation, the rule in North Carolina is this: An infant under 7 years of age is conclusively presumed to be incapable of contributory negligence. Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124. An infant between the ages of 7 and 14 is presumed to be incapable of contributory negligence, but this presumption may be rebutted by evidence showing capacity. "The test in determining whether the child is contributorily negligent is whether it acted as a child of its age, capacity, discretion, knowledge and experience would ordinarily have acted under similar circumstances." Adams v. State *767 Board of Education, 248 N.C. 506, 512, 103 S.E.2d 854, 858; accord, Wilson v. Bright, 255 N.C. 329, 121 S.E.2d 601; Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205. "An infant of the age of 14 years is presumed to have sufficient capacity to be sensible of danger and to have power to avoid it, and this presumption will stand until rebutted by clear proof of the absence of such discretion as is usual with infants of that age." Baker v. Seaboard Air Line R. R., 150 N.C. 562, 564, 64 S.E. 506, 507, 29 L.R.A.,N.S., 846; accord, Burgess v. Mattox, 260 N.C. 305, 132 S.E.2d 577; Tallent v. Talbert, 249 N.C. 149, 105 S.E.2d 426; Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727; Moore v. Order Minor Conventuals, 164 F. Supp. 711, aff'd, 267 F.2d 296.

In Baker v. Seaboard Air Line R. R., supra, plaintiff's intestate, a boy within one month of 15 years of age, who had been permitted to ride on defendant's work train, was killed when he jumped from it while it was running about 30 MPH. The jury found for plaintiff in his action for wrongful death. This Court reversed, saying:

"He (intestate) was not an infant of tender years, and, in the absence of evidence to the contrary, had the capacity of an adult to appreciate danger. * * This presumption of discreet judgment which arises after 14 years of age must stand until it is overthrown by clear proof of the absence of such natural intelligence as is usual with infants of similar age. If such evidence is offered by the plaintiff to rebut such presumption, its weight and value are for the jury to estimate." Id., 150 N.C. at 564 and 568, 64 S.E. at 507, 509.

In Burnett v. Roanoke Mills Company, 152 N.C. 35, 67 S.E. 30, the plaintiff was 15 years old, an intelligent and bright boy, who was injured while attempting to unclog a cotton picker without stopping the machine. The plaintiff's evidence tended to show that he had not been properly instructed in the operation of the machine. The jury found that the plaintiff was injured by his own negligence. He appealed, assigning as error the court's charge "that the law raises the presumption that a person over 14 years of age is endowed with sufficient intelligence to perform the work assigned to him, but the presumption is not a conclusive one, and may be rebutted by proof satisfactory to the jury that the plaintiff did not, in fact, have such intelligence or capacity." Id. at 37, 67 S.E. at 31. In affirming the judgment dismissing the action, Walker, J., said: "This objection is clearly answered by this court in the case of Baker v. [Seaboard Air Line] Railroad Co., 150 N.C. 562, 64 S.E. 506, in which Mr. Justice Brown, for the court, stated the law with clearness and precision * *." Id. at 37, 67 S.E. at 31.

In Rimmer v. Southern R. R., 208 N.C. 198, 179 S.E. 753, the plaintiff's intestate, a girl 17 years of age, was fatally injured when she was struck by defendant's train as she ran across the track with a cloak over her head as a protection from the rain. The train, which gave no signal, was running at a high rate of speed in violation of the city ordinance. There was no evidence tending to show intestate's experience or intellectual capacity. Without reference to plaintiff's age, in an opinion by Stacy, C. J., the Court sustained the judgment of nonsuit upon the ground of intestate's negligence.

In Van Dyke v. Atlantic Greyhound Corp., supra, a case closely resembling the one at bar, the plaintiff's intestate, a 14-year-old boy was killed in a bus-bicycle accident. The Court sustained a nonsuit saying, "While plaintiff's intestate was only fourteen years of age, the evidence as to his intelligence and capacity was sufficient to show that he was amenable to the ordinary rule of contributory negligence as a bar to the action." Id. at 286, 10 S.E.2d at 729.

In Burgess v. Mattox, supra 260 N.C. at 307, 132 S.E.2d at 578, we said: "A seventeen-year old plaintiff is presumed to have *768 sufficient capacity to understand and avoid a clear danger, and he is chargeable with contributory negligence as a matter of law if he fails to do so."

In this case, there was no contention and no evidence tending to show that plaintiff was lacking in the ability, capacity, or intelligence of the ordinary 14-year-old boy. On the contrary, there was evidence that before the accident he made good grades in school, played basketball, baseball, and football. Since the accident, he plays in the high school band, works part time at a grocery, and swims. He is still able to learn and to "know it all" until he gets the test in his hands. Then his mind "is a blank." There being no attempt to rebut the presumption of plaintiff's capacity to exercise care for his own safety, the court's charge was correct. Had he instructed the jury according to plaintiff's contentions as set out in his assignment of error No. 23, he would have nullified the presumption of capacity in the 14-year-old plaintiff. As pointed out in Baker v. Seaboard Air Line R. R., supra, at what age the presumption of capacity arises is not a question of fact, but one of law.

"The inquiry at what age must an infant's responsibility for negligence be presumed to commence cannot be answered by referring it to a jury. That would furnish us with no rule whatever. It would simply produce a shifting standard, according to the sympathies of prejudices of those who composed each particular jury. One jury might fix the age at 14, and another at 18, and another at 20." Id. at 565, 64 S.E. at 507-508.

In the absence of evidence to the contrary, our law fixes the age at 14. At that age there is a rebuttable presumption that he 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. Accord, Sheetz v. Welch, 89 Ga.App. 749, 81 S.E.2d 319; Bugg v. Knowles, 33 Ga.App. 710, 127 S.E. 813; Brush v. Public Service Co. of Indiana, 106 Ind.App. 554, 21 N.E.2d 83; Kent v. Interstate Public Service Co., 97 Ind.App. 13, 168 N.E. 465; West v. Southern Ry. Co., 20 Tenn.App. 491, 100 S.W.2d 1004; Ambrose & Company v. Booth, 301 S.W.2d 223 (Tex.Civ.App., 1957); Nelson v. Arrowhead Freight Lines, 99 Utah 129, 104 P.2d 225; White v. Kanawha City Co., 127 W.Va. 566, 34 S.E.2d 17.

It is noted that plaintiff did not allege that defendant Jenkins waited until he was immediately behind the boys to blow his horn and that a sudden blast frightened plaintiff into making a sudden turn. On the contrary, plaintiff's allegation and evidence is that no horn was sounded. Webb v. Felton, 266 N.C. 707, 147 S.E.2d 219.

Plaintiff's assignment of error relating to the first issue, which was answered in his favor, and to the issues of agency and damages, which the jury did not answer, are rendered moot by plaintiff's contributory negligence. The other assignments of error disclosed

No error.