Campbell v. Model Steam Laundry

190 N.C. 649

• Court: Supreme Court of North Carolina
• Decided: December 9, 1925
• Status: Published

Opinion

Yasser, J.

There must, of necessity, be a period within which a child is incapable of exercising care to such a degree as may be otherwise legally applicable to the given situation. We are of the opinion that a child 4 years old is incapable of negligence, primary or contributory. 20 R. C. L., 124, paragraph 105; Shellaberger v. Fisher, 143 Fed., 937; Purtell v. Philadelphia Coal Co., 256 Ill., 110; South Bend v. Turner, 156 Ind., 418; Schmitz v. St. Louis R. Co., 119 Mo., 256; Sou. R. Co., v. Chatman, 124 Ga., 1026; Chicago City R. Co. v. Wilcox, 138 Ill., 370; Evansville v. Senhenn, 151 Ind., 42; Barnes v. Shreveport City R. Co., 47 La. Ann., 1218; Buechner v. New Orleans, 112 La., 599; Twist v. Winona R. Co., 39 Minn., 164; Christian v. Fernandez, 100 Miss., 76; O’Flaherty v. Union R. Co., 45 Mo., 70; Newman v. Phillipsburgh Horse-Car R. Co., 52 N. J. L., 446; Mangam v. Brooklyn City R. Co., 38 N. Y., 455; Bottoms v. R. R., 114 N. C., 699; Bolin v. Tobacco Co., 141 N. C., 300; Ruehl v. Rural Telephone Co., 23 N. D., 6; Cleveland Rolling Mill Co. v. Corrigan, 46 Ohio St., 283; Kay v. Pennsylvania R. Co., 65 Pa. St., 269; Summers v. Bergner Brewing Co., 143 Pa. St., 114; Evers v. Philadelphia Traction Co., 176 Pa. St., 376; Tucker v. Buffalo Cotton Mills, 76 S. C., 539; Gunn v. Ohio River R. Co., 42 W. Va., 676; Hemingway v. Chicago R. Co., 72 Wis., 42.

This ruling is in accord with, the decisions throughout this country, as indicated by the following: McDermott v. Severe, 202 U. S., 600. In this case the Court affirmed the judgment for plaintiff, a boy 6 years and 10 months old. The trial court instructed the jury that, since plaintiff was under 7 years of age, contributory negligence could not be attributed to him. Tea Co. v. Freedman, 94 C. C. A., 369; Northern Pac. R. Co. v. Shevenack, 122 C. C. A., 178; Sheffield Co. v. Harris, 183 Ala., 357; St. Louis I. M. & S. R. Co. v. Denty, 63 Ark., 177; L. & N. R. R. Co. v. Arp, 136 G-a., 489; Anderson v. Ry. Co., 15 Idaho, 513; Devine v. Chicago Ry. Co., 189 Ill. App., 435; U. S. Brewing Co. v. Stoltenberg, 211 Ill., 531; Elwood Electric Co. v. Ross, 26 Ind., 258; Smith v. A. T. & S. F. R. R. Co., 25 Kans., 738; Ill. Cent. R. R. Co. v. Dupree, 138 Ky., 459; Palermo v. Orleans Ice Mfg. Co., 130 La., 833; Morgan v. Aroostook Valley R. Co., (Maine), 98 Atl., 628; Marsland v. Murray, 148 Mass., 91; Hoover v. Detroit R. Co., 188 Mich., 313; Berry v. R. R., 214 Mo., 593; Dorr v. Ry., 76 N. H., 160; Napurana v. Young, 74 N. J. L., 627; Birkett v. Knickerbocker Ice Co., 110 N. Y., 504; Levine v. Ry., 70 Ap. Division, 426, affirmed 177 N. Y., 523; McDonald v. O’Reilly, 45 Oreg., 589; Counizzarri v. Phila. & R. Ry Co., 248 Pa., 474; Dodd v. Spartanburg Ry. Cas and Electric Co., 95 S. C., 9; Wise & Co. v. Morgan, 101 Tenn., 273; Ollis v. H. E. & W. T. Ry. Co., 31 Tex. Civil App., 601; Smalley v. R. R., 34 Utah, 423; N. & W. R. R. Co. v. Groseclose’s Adm’r., 88 Va., 267; American Tobacco Co. v. Polisco, 104 Va., 777; Eskildsen v. City of Seattle, 29 Wash., 583; Parrish v. City of Huntington, 57 W. Va., 286; Gibson w. City of Huntington, 38 W. Va., 177; O’Brien v. Wis. Cent. T. Co., 119 Wis., 7; Wald v. Electric Ry., 18 Manitoba, 134, affirmed in 41 Can. S. C., 431; Cooke v. Midland G. W. Ry., 15 Ann. Cas., 557; McGregory v. Ross, (England) 10 Rettie, 725; L. R. A., 1917 F., 104.

A child of this tender age merely indulges the natural instincts of a child and amuses himself with an empty cart, a deserted horse, an automobile or an electric truck, or whatever may be in his sight. In so doing he is not negligent. Lynch v. Nurdin, 113 Eng. Rep., 1041, 1 Q. B. Rep., 29. This case has been regarded as the basic authority for this doctrine. Its facts are these: “Mr. Nurdin was an egg merchant, and used to send his servant round Soho with a cart to deliver eggs to his customers. One day, when the man was out with the cart as usual, he imprudently left it for half an hour or so standing by itself on Compton Street, drawn up by the side of the pavement. While he was away some little children began'playing about the cart, climbing into it, and having all kinds of games. Amongst them was a little boy named Lynch, aged six years. He was in the act of climbing the step with a view to securing a box seat, when another mischievous little boy pulled at tbe horse’s bridle. The borse moved on, and the little Lynch was thrown to the ground and hurt.

“The child successfully brought an action for damages against the egg merchant, it being considered that he was not guilty of contributory negligence, as he had only obeyed a child’s natural instinct in playing with the cart.” Shirley’s Leading Cases in the Common Law (3rd English Edition), 273.

This principle is also announced in Magel v. Railway Co., 75 Mo., 653; Koons v. R. R., 65 Mo., 592; R. R. v. Fort, 84 U. S., 553; R. R. v. Stout, 84 U. S., 657; Bailey on Personal Injuries, 1291; Black on Contributory Negligence, secs. 137-140; Rolin v. Tobacco Co., supra; Berry v. R. R., 214 Mo., 593; Birge v. Gardiner, 19 Conn., 507; Daley v. Norwich & W. R. Co., 26 Conn., 591; Wilmot v. McPadden, 76 Conn., 367, 19 L. R. A. (N. S.), 1101; Haynes v. Cas Co., 114 N. C., 203; Powers v. Harlowe, 51 Am. Rep., 160; Kramer v. R. R., 127 N. C., 330; Barnett v. Mills, 167 N. C., 576, and cases cited and discussed by the late Mr. Justice Allen. In Wheeling and Lake Erie R. R. Co. v. Harvey, 77 Ohio St., 235, 83 N. E. 797, 122 Am. St. Rep., 503 (including Schwartz v. Skoon Water Works Co. idem., 522), the various views of this principle are cited. To the same effect is Krachanake v. Mfg. Co., 175 N. C., 435; Richardson v. Libes, 188 N. C., 112 (a child 6 years old playing with dynamite caps. This special class of injuries to children is authoritatively reviewed in L. R. A., 1917 A., 1295N); Graham v. Power Co., 189 N. C., 381. In Ashby v. R. R., 172 N. C., 98, it is held that contributory negligence cannot be attributed to a child of 8 years. Authorities might he extended, but we deduce the rule to be that one is held responsible for all the consequences of his acts which are natural and probable and ought to have been foreseen by a reasonably prudent man, and if one wrongfully leaves upon a public street, in a populous city, a large electric delivery truck, with the “plug” in its place, and the brakes loose and not set, which he, as a reasonable man, ought to have foreseen, in the exercise of ordinary care, would likely be disturbed by heedless children, then he is liable for an injury resulting from such negligence. Lane v. Atlantic Works, 111 Mass., 136; Union Pac. v. McDonald, 152 U. S., 262; Stark v. Holtzclaw, 105 Sou., 330 (Florida).

The trial court in the charge to the jury correctly applied the rule of negligence, proximate cause, explaining an ef&cient intervening cause which relieves of liability. The defendants’ liability has been determined by the rule of the prudent man, according to the proper test.

The court fully charged the jury that parking the truck on the left side of the street, contrary to the ordinance, was negligence; but, in order to answer the first issue “Yes” on this phase of the case, they must find that tbis negligence was tbe proximate cause of tbe injury. Tbis charge is sustained. Kyne v. Wilmington, 14 Atlantic, 922; Gibson v. Leonard, 143 Ill., 182, 17 L. R. A., 588; Browne v. Cooper & Co., 191 Ill., 226; Nichey v. Steuder, 164 Ind., 189; Edwards v. R. R., 129 N. C., 78; Henderson v. Traction Co., 132 N. C., 779; Duval v. R. R., 134 N. C., 331; Cheek v. Lumber Co., 134 N. C., 225; Leathers v. Tobacco Co., 144 N. C., 330; Starnes v. Mfg. Co., 147 N. C., 556; Rich v. Electric Co., 152 N. C., 689; Ledbetter v. English, 166 N. C., 125; Newton v. Texas Co., 180 N. C., 561; Stultz v. Thomas, 182 N. C., 470.

However, sucb negligence must be tbe proximate cause of tbe injury. McNeill v. R. R., 167 N. C., 390; Dunn v. R. R., 174 N. C., 254; Chancey v. R. R., 174 N. C., 351; Lea v. Utilities Co.; 175 N. C., 459; Bidge v. High Point, 176 N. C., 421; Balcum v. Johnson, 177 N. C., 213; Construction Co. v. R. R., 184 N. C., 179.

Tbe act of tbe Sams child in starting tbe truck, under tbe charge of tbe court, and in tbe light of tbe admitted facts, was not an excusing, intervening, efficient cause. Tbe test is set out in Balcum v. Johnson, supra; Harton v. Telephone Co., 141 N. C., 455.

Proximate cause, as defined in Taylor v. Lumber Co., 173 N. C., 112, was applied in tbe instant case.

There was no error in refusing tbe motion to nonsuit and to give tbe prayers for instruction further than given in tbe charge.

Negligence was defined according to Baron Alderson’s formula: “Negligence is tbe omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate tbe conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Pollock on Torts, 442.

We are not disposed to extend tbe so-called “attractive nuisgnce” doctrine (Briscoe v. Lighting and Power Co., 148 N. C., 396, 62 S. E., 600, 19 L. R. A. (N. S.), 1116). Tbe electric truck is in no sense a nuisance. It is a common vehicle of commerce. Tbe street on which it was parked, without due care for tbe protection of tbe public, is open to all tbe people, including plaintiff's intestate, and tbe principle is forcibly reannounced in Ferrell v. Cotton Mills, 157 N. C., 528, when it says: “Although tbe dangerous thing may not be what is termed an attractive nuisance, that is to say, not have a special attraction for children, by reason of their childish instinct, yet, when it is so left exposed that they are likely to come into contact with it, and when their coming in contact with it is obviously dangerous to them, tbe persons so exposing tbe dangerous thing should reasonably anticipate tbe injury that is likely to happen to them from being so exposed, and is bound to take reasonable care to guard, it so as to prevent injury to them.” Iamurri v. Saginaw City Gas Co., 148 Mich., 27.

Tbe ordinance of Charlotte, offered by defendant during the examination of plaintiff’s witnesses was not competent to show diligence of plaintiff’s intestate.

The defendant asserts error in setting aside so much of the first verdict as related to damages.

As this Court has said in Jarrett v. Trunk Co., 144 N. C., 299, 302; Barringer v. Barringer, 153 N. C., 392, this practice in the trial court is not to be commended. Frequently the issues are so interwoven that serious harm may result from setting aside only one issue. The same rule obtains in the Federal courts. R. R. Co. v. Ferebee, 238 U. S., 274.

However, prejudice to the appellant does not affirmatively appear (Perry v. Surety Co., ante, 284), and the court had the power, in its discretion so to do (Billings v. Observer, 150 N. C., 540). No question of law or legal inference is presented by this exception and we will not interfere.

The evidence objected to was competent to explain the truck and its construction to the jury. We find

No error.