Fry v. Southern Public Utilities Co.

111 S.E. 354, 183 N.C. 281, 1922 N.C. LEXIS 259

• Court: Supreme Court of North Carolina
• Decided: April 5, 1922
• Status: Published

Opinions

Walker, J.,

after stating the case: If the first assignment of error is sufficiently stated under our rules, we are of the opinion that it is without any substantial merit. It -was competent' to prove the custom of small boys to jump upon the rear step of the wagon to ride and get bits of ice for several reasons, and, among them, to answer the contention of defendant that instructions had been given to the drivers not to permit riding on the wagon by small boys. If such order was given, the plaintiff surely was entitled to show that it had been constantly violated for a long time, with the knowledge of the drivers and those in charge of the wagon, from which the jury could well infer that the owner of the wagon had notice of its nonobservance, and that it was an order of the company more honored in the breach than in the observance, and, in legal contemplation, it had been abrogated, or at least waived. Biles v. R. R., 139 N. C., 528; Haynes v. R. R., 143 N. C., 154; Smith v. R. R., 147 N. C., 603; Bordeaux v. R. R., 150 N. C., 528; Railway Co. v. Mobley, 6 Ga. App., 33; P. L. Co. v. Whitzel, 118 Va., 161; Robinson v. R. R., 71 W. Va., 423; Railroad Co. v. Reager, 96 Tenn., 128. It has been held generally that if a rule is made for the safety of the servant or others, but its customary violation has continued so long that the master either knew .of it, or could by the exercise of ordinary care have found it out and acquiesced in it, he is presumed to have consented to its repeal, or to have waived obedience to it. Smith v. R. R., supra; Biles v. R. R., 143 N. C., 78. But so far as the rule, or order to the drivers, in this case is concerned, it does not appear to have been observed at all, and boys were allowed to ride on the rear step of the wagon at their pleasure, even when the manager of it, who had left on this occasion, was there. All this evidence, and more, is sufficient to show, at least, the tacit consent of the driver and manager to such a course of conduct by them, and the jury have doubtless so found. If this be so, and it can hardly be disputed, the act of this young boy was not within the prohibition of the city ordinance forbidding it only when it is without the consent of the driver, or person controlling its movements and management. As this is a question of capital importance in the decision of the case, we will refer to some of the evidence bearing upon it: For many years it had been the habit and custom for small children to get upon and ride upon the rear of defendant’s ice wagons, both for the pleasure of riding and for the purpose of getting small pieces of broken ice. In doing so they rode from door to door, and frequently for considerable distances out of the neighborhood in which they lived. So general had been this practice and so long continued that one witness, in referring to it, said: “It has always been.” This custom was known to the officers and agents of the defendant company, or by the exercise of ordinary care they should have known it, and in legal contemplation the defendant did know of this custom. But aside from this legal presumption, actual knowledge of this custom, it seems, was brought home to tbe defendant, its officers and agents. 0. L. Hill, tbe man in charge of tbis particular wagon, testified: “Little fellows, six years old up. to eleven and twelve, bad tbis babit of getting on tbe wagon.” J. A. Eagle, assistant manager of tbe defendant company, in testifying with regard to tbis custom, said be bad observed it “ever since be bad been in tbe ice business.” C. E. Moore, manager of tbe defendant company, said be knew of tbe existence of tbe custom “in a limited way.” More than that, tbe defendant’s driver knew of tbe custom, permitted it to grow up, and even encouraged it, offering tbe inducement of cool rides and bits of cracked ice. But tbe defendant contends that tbe admission of tbe evidence as to tbis custom was error, upon tbe general ground that it was an illegal custom and that it grew up in violation of an ordinance of tbe city of Charlotte, which declares “that no one shall ride or jump onto any vehicle without tbe consent of tbe driver thereof; and no person, when riding, shall allow any part of bis body to protrude beyond tbe limits óf tbe vehicle, nor shall any person bang on to any vehicle whatsoever.” If that position were sound, then any defendant could escape tbe consequences of bis wrongful act by tbe mere device of alleging and proving that bis conduct bad been unlawful. But even if tbe position of tbe defendant be a correct one, then it is equally true, as tbe record clearly shows, that tbis custom bad grown up with tbe consent of tbe drivers of tbe defendant’s wagons; and, therefore, it was not forbidden by tbe ordinance. In Ferrell v. Cotton Mills, 157 N. C., 528, and many other cases to like effect, evidence was admitted to show tbe custom or babit of small children to play upon premises where they were technical trespassers. If in those cases evidence was competent which proved a custom, in violation of tbe laws against trespass, then certainly in tbis ease evidence of a custom in violation of an ordinance of tbe city of Charlotte was competent. Having permitted tbis custom to grow up, tbis defendant cannot take shelter behind bis own wrong. “A babit of doing a thing is naturally of probative value as indicating that on a particular occasion a thing was done as usual; and, if clearly shown as a definite course of action, is constantly admitted in evidence.” 1 Greenleaf’s Ev. (16 ed.), see. 14 J.

Leaving tbis subject, we come to tbe next material question in tbe case. Having concluded there was evidence that young Ery did not violate tbe ordinance, or that there was evidence that be did not, and tbe jury so found, was be guilty of contributory negligence? We take tbis matter up now before considering tbe issue as to defendant’s negligence, as it is more nearly related to, and connected with, tbe one just before discussed. Tbe jury found that be was not guilty of any negligence himself which contributed to bis injury and death, but tbe defendant contends that tbis answer of tbe jury was induced by an error of tbe judge in bis charge to them, wbicb they say is that “as young Fry was under twelve years of age, be could not be guilty of negligence.” He was one month and seven days under twelve. Tbis, we think, was error. Tbe error consisted in charging tbe jury that tbe boy being under twelve years of age was incapable of committing tbe alleged negligent act wbicb it is claimed contributed to bis injury. Tbe responsibility of an infant for contributory negligence is not necessarily a question of law and some expressions in our reports apparently to tbe contrary are misleading and contrary to tbe accepted and approved principle wbicb governs in such cases. Tbe question was so fully discussed, with a copious citation of tbe well considered cases in Alexander v. Statesville, 165 N. C., 527, that much further comment would seem to be useless. It was there held, as stated in tbe seventh headnote, that while a child of tender years is not held to tbe same degree of care as one of mature years in avoiding an injury arising from tbe negligent act of another, it is ordinarily a question of fact for tbe jury to determine, in bis action to recover damages therefor, whether, under tbe circumstances, and considering bis age and capacity, be should have avoided tbe injury complained of by tbe exercise of ordinary care; and in that case it appearing that tbe plaintiff was a bright boy of about 7 years of age, it was held that tbe court properly left tbe issue of contributory negligence to tbe jury. ¥e cannot approve all that was said, with respect to tbis question, in Baker v. R. R., 150 N. C., 562, and Foard v. Power Co., 170 N. C., 48, though expressions will be found therein which seem to agree with tbe view herein stated. In Alexander v. Statesville, supra, we followed tbe rule as adopted by tbe Supreme Court of tbe United States in Railroad Co. v. Gladmon, 15 Wallace (U. S.), 401 (21 L. Ed., 114), and Railroad Co. v. Stout, 17 Wallace (U. S.), 657 (21 L. Ed., 745). Gladmon’s case has been followed by this Court in Manly v. R. R., 74 N. C., 655; Murray v. R. R., 93 N. C., 92; Bottoms v. R. R., 114 N. C., 699. In Bottoms’ case tbe Court refers to Gladmon’s case and Robinson v. Cone, 22 Vt., 213, as stating tbe correct rule, and takes tbis passage from tbe Bobinson case: “All,” says Judge Bedfield, in delivering tbe opinion, “that is required of an infant plaintiff in such a case (where a child was injured in a highway) being that be exercise care and prudence equal to bis capacity.” Tbe passage which we have taken from Gladmon’s case was quoted by Chief Justice Smith, with full approval, in Murray v. R. R., supra, as containing a correct statement of tbe rule applicable in such eases. Numerous other cases are cited in Alexander v. Statesville, supra, at p. 536 of 165 N. C. It was held in Westerfield v. Levis, 43 La. Ann., 63 (cited in tbe Alexander case), that the rule wbicb exempts a child of tender years from responsibility, while it may not operate justly in every possible case, on the whole promotes the ends of justice, and the Court followed the authorities which held that a child of the age of appellant is prima facie exempt from responsibility, but also held that testimony is admissible to show the contrary, citing many authorities. We said in the Alexander cáse that upon the question of plaintiff’s contributory negligence, the judge properly confined his charge to the second issue, which separately and independently involved an inquiry into that matter, as to the plaintiff’s age and his incapacity arising out of his tender years, and it may be said that the question of contributory negligence on his part is not to be determined alone by the fact of his youth, except in extreme cases; but other considerations enter into the question, as, for instance, his degree of capacity or intelligence. Some boys are brighter, smarter, more precocious, and more capable than others who are much older, and better able to take care of themselves. The youth of the person must be considered, of course, but, with the qualifications already made, it is not the only test, and the presumption of incapacity to protect himself is not always a conclusive one. In Rolin v. Tobacco Co., 141 N. C., 300, this Court said: “It is hardly necessary to add that contributory negligence, on the part of the minor, is to be measured by his age and his ability to discern and appreciate the circumstances of danger. He is not chargeable with the same degree of care as an experienced adult, but is only required to exercise such prudence as one of his years may be expected to possess. As the standard of care thus varies with the age, capacity, and experience of the child, it is usually, if not always, when the child is not wholly irresponsible, a question of fact for the jury whether a child exercised the ordinary care and prudence of a child similarly situated; and if such care was exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law exacts for determining what is ordinary care in a person of full age and capacity,” citing Am. C. and F. Co. v. Armentrodt, 214 Ill., 509; Plumly v. Birge, 124 Mass., 57; 7 A. & E., 409. Labatt on Master and Servant (Ed. 1904), sec. 348, says that the essential and controlling conception by which a minor’s right of action is determined with reference to the existence or absence of contributory fault is that his capacity is the measure of his responsibility. If he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him if he unwittingly exposes himself to that danger. For the exercise of such measure of capacity and discretion as he possesses, he is responsible. And quoting from Gladmon’s case, supra, this Court further says: “The rule of law in regard to the negligence of an adult and the rule in regard to that of an infant of tender years is quite different. By tbe adult there must be given that care and attention for bis own protection tbat is ordinarily exercised by persons of intelligence and discretion. If be fails to give it, bis injury is tbe result of bis own folly, and cannot be visited upon another. Of an infant of tender years less discretion is required, and tbe degree depends upon bis age and knowledge. Of a child of 3 years of age less caution would be required than one of 7; and of a child of 7, less than one of 12 or 15. Tbe caution required is according to tbe maturity and capacity of tbe child, and this is to be determined in each case by tbe circumstances of tbat case.”

But if it be admitted tbat tbe boy was guilty of contributory negligence, tbe question whether it was tbe proximate cause of bis death remains to be determined by tbe jury, under proper instructions from tbe court. “Where defendant, by exercising due care, can avoid tbe consequences of plaintiff’s negligence, or be can discover plaintiff’s peril in time to avoid injuring him, be is liable on bis failure so to do.” Cullifer v. R. R., 168 N. C., 309. “Tbe doctrine of tbe last clear chance applies where tbe defendant, after be discovers plaintiff’s peril, or in tbe exercise of ordinary care should have discovered it, negligently fails to avoid tbe accident.” N. S. R. Co. v. White’s Admr., 84 S. E., 646. Tbe jury have found, with evidence to warrant tbe finding, tbat tbe driver knew tbe boy was on tbe rear step of tbe wagon, and bad given him permission to ride there, and that, notwithstanding this knowledge, he drove onto tbe track, in front of tbe fast approaching street car, and bis wagon was struck by tbe same, and this caused tbe intestate’s injury and death. Tbe driver of tbe defendant testified tbat some one drove an automobile between him and tbe curb of tbe sidewalk, which frightened bis horses and caused them to turn and drag bis wagon onto tbe track, but there was evidence to tbe contrary, and especially by a witness, who was riding in bis automobile and a little behind tbe ice wagon, and who stated tbat be was in full, view, and 'that no such thing occurred, and the jury, under tbe evidence and tbe instructions of tbe court, not only found tbat tbe driver’s testimony was not true, but tbat, on tbe contrary, be drove both “negligently” and “recklessly” upon tbe track. This appears from tbe instruction of tbe court on tbe third issue, as set forth in our statement of tbe case and tbe verdict. He also drove on tbe track “willfully and wantonly,” as appears from tbe instruction of tbe court upon tbe fourth issue. There was evidence tbat tbe wagon was driven upon tbe track in violation of a city ordinance, which provided tbat tbe driver, in order to cross over to tbe other side of tbe street, should make bis turn at tbe intersection of Tryon and Ninth streets, or if be intended to go as far north as Tenth Street, then at tbe intersection of Tryon with Tenth Street, and that, by the ordinance, he should have turned in on the north side of Ninth Street, or of Tenth Street, depending upon where he expected to make the crossing. The plaintiff contends, therefore, that he was acting, not only negligently, recklessly, willfully, and wantonly, but criminally, as he was violating the ordinance. We must construe the verdict always in the light of the evidence and the charge of the court, and especially as resolving all inferences in favor of the successful party. Aldrich v. Railway Co., 79 S. E., 316. We have held repeatedly that the verdict must be interpreted “and allowed significance” by reference to the pleadings, testimony, and the charge of the court. Owens v. Ins. Co., 173 N. C., 373; Taylor v. Stewart, 175 N. C., 199; Bank v. Wysong, 177 N. C., 284. If we follow these decisions and interpret this verdict by proper reference to the pleadings, evidence, and charge, there can be no doubt as to what was the conclusion of the jury, which is that the driver of the wagon, regardless of any contributory negligence of the boy, acted not only negligently when he had the chance to save him, but willfully, recklessly, and wantonly, and against such conduct as this finding implies, the contributory negligence of the boy is no protection or bar to the plaintiff’s recovery. If the party injured is himself ever so negligent, the one who caused that injury is liable to him for the ensuing damages, if he was aware of the dangerous situation and caused the damage willfully, wantonly, or even recklessly, that is, if he did so without regard to the consequences of his act and being indifferent to the rights of others. It is said in a standard treatise: “The doctrine that contributory negligence will defeat recovery has no application where the injury is the result o.f the willful, wanton, and reckless conduct of defendant. ... In order that one may be held guilty of willful or wanton conduct, it must be shown that he was conscious of the surroundings, and was aware, from his knowledge of existing conditions, that injury would probably result from his conduct, under the circumstances, and, with reckless indifference to consequences, he consciously and intentionally did some wrongful act or omitted some known duty which produced the injurious result.” 29 Cyc., 509-510. And in Brendle v. Spencer, 125 N. C., 474, this Court held: “It is settled that contributory negligence, even if admitted, is no defense to willful or wanton injury. The finding of such injury by the jury eliminates all question of negligence on both sides. The defendant company is responsible for the willful and wanton injury occasioned by. its employee while on duty in its service.”

We do not mean to say that the driver’s act in crossing at the wrong place, contrary to the ordinance, if he did so, would of itself constitute willfulness, but it may be considered as .one of the facts or circumstances in evidence tending to show that his act was willful, as being entirely regardless of tbe law and tbe safety of others. We have held that where a statute or an ordinance is violated it is such a distinct legal wrong that if it be the proximate cause of the injury to another, it will then constitute an actionable wrong or tort, but the jury must find the facts essential to .the application of this principle. Stone v. Texas Co., 180 N. C., 546, where the matter is fully discussed.

We finally conclude that there was some evidence from which the jury could find that the driver of the wagon was guilty of culpable negligence, or a distinct legal wrong, as hereinbefore defined by us, and the defendant itself may, therefore, be liable to the plaintiff upon the principle of respondeat superior, the driver being its servant and his illegal acts being imputable to the defendant. If knowing that the boy was on the wagon, and he was there by the driver’s consent, or permission, the defendant would have to answer for his negligence if he exposed the boy to impending danger in crossing the track too near to the approaching street car, and especially so if the act of crossing the track under the circumstances was forbidden by the ordinance, and was the proximate cause of the injury to the boy which caused his death.

This Court will not undertake to decide the case upon the evidence, but will leave its weight and sufficiency to the jury. It may be that the defendant’s construction of the evidence is the correct one, and that the plaintiff’s is not. The Court must not be understood as intimating any opinion at all upon the weight of the evidence, or any of it, but as leaving its sufficiency to establish the contention of the plaintiff, or that of the defendant, entirely to the jury, with proper directions from the court.

The error of the judge as to the contributory negligence of the boy is of sufficient importance to have been prejudicial to the defendant, and because of it a new .trial must be had in order that the case may be submitted again to the jury under proper instructions.

New trial.