Adams v. State Bd. of Ed.

• Decision Date: 04 June 1958
• Docket Number: No. 601,601
• Citation: 248 N.C. 506,103 S.E.2d 854
• Parties: Arthur O. ADAMS, Next Friend George Lindsay Adams, Minor, v. STATE BOARD OF EDUCATION.
• Court: North Carolina Supreme Court

Page 854

103 S.E.2d 854

248 N.C. 506

Arthur O. ADAMS, Next Friend George Lindsay Adams, Minor, v. STATE BOARD OF EDUCATION.

No. 601

Supreme Court of North Carolina.

June 4, 1958

Atty. Gen. George B. Patton, Asst. Atty. Gen. Claude L. Love, and Charles D. Barham, Staff Atty., Raleigh, for defendant, appellant.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for plaintiff, appellee.

JOHNSON, Justice.

The Tort Claims Act provides that 'the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them * * *. ' G.S. § 143-293; Bradshaw v. State Board of Education, 244 N.C. 393, 93 S.E.2d 434.

Necessarily, then, decision turns on whether there is any competent evidence to support the Industrial Commission's finding and conclusion that the plaintiff was contributorily negligenct in bar of recovery.

The question thus posed requres a recurrence to these fundamental principles of law: Contributory negligence is such an act or omission on the part of the plaintiff amounting to a want of ordinary care concurring and cooperating with some negligent act or omission on the part of the defendant as makes the act or omission of the plaintiff a proximate cause or occasion of the injury complained of. Moore v. Chicago Bridge & Iron Works, 183 N.C. 438, 111 S.E. 776; Elder v. Plaza Ry., 194 N.C. 617, 140 S.E. 298; Wall v. City of Asheville, 219 N.C. 163, 13 S.E.2d 260; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904. Proximate cause is a cause which in natural and continuous sequentce, unbroken by any new and independent cause, produced the plaintiff's injuries, and without which the injuries would not have occurred, and from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed. Hall v. Coble Dairies, 234 N.C. 206, bottom page 214, 67 S.E.2d 63, 68, 29 A.L.R.2d 682; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45; Ellis v. Sinclair Refining Co., 214 N.C. 388, 199 S.E. 403. It is essential that in order to establish contributory negligence, the defendant must show negligence on the part of the plaintiff as a proximate cause of the injury. Brewster v. Elizabeth City, 137 N. C. 392, 49 S.E. 885; West Construction Co. v. Atlantic Coast Line r. Co., 184 N.C. 179, 113 S.E. 672; West Construction Co. v. Atlantic Coast Line R. Co., 185 N.C. 43, 116 S.E. 3; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488; Stephenson v. Leonard, 208 N.C. 451, 181 S.E. 261. Therefore, the negligence of the plaintiff and its proximate cause must concur and be proved by the defendant, and a failure to establish proximate cause, although negligence be proved, is fatal to the plea. Brewster v. Elizabeth City, supra.

The rule obtains in this jurisdiction that in determining whether a child is contributorily negligent in any given situation a prima facie presumption exists that an infant between the ages of seven and fourteen is incapable of contributory negligence, but the presumption may be overcome. 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. Caudle v. Seaboard Air Line R. Co., 202 N.C. 404, 163 S.E. 122. See, also, Walston v. Greene, 247 N.C. 693, 102 S.E. 124; Annotations: 107 A.L.R. 4; 174 A.L.R. 1080.

In Rolin v. R. J. Reynolds Tobacco Co., 141 N.C. 300, 314, 53 S.E. 891, 896, 7 L.R. A.,N.C., 335, the Court said in speaking to the question of contributory negligence respecting an eleven year old boy who was injured while at work: 'Within certain ages, courts hold children incapable of controbutory negligence. We do not find any case, nor do we think it sound doctrine, to say that a child of 12 years comes within that class. Adopting the standard of the law in respect to criminal liability, we think that a child under 12 years of age is presumed to be incapable of so understanding and appreciating danger from the negligent act, or conditions produced by others, as to make him guilty of contributory negligence. Mr. Labatt says: 'The essential and controlling conception by which a minor's right of action is determined, with reference to the existence or absence of contributing fault, 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 danger. For the exercise of such measure of capacity and discretion as he possesses he is responsible.' * * * ' Between seven and fourteen a child is prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity.' Tutwiler Coal, Coke & Iron Co. v. Enslen, 129 Ala. 336, 30 So. 600. * * *

'In regard to the alleged contributory negligence of the plaintiff, he should have instructed the jury in accordance with the principles announced by the authorities herein cited. The jury could take into consideration the age, intelligence, and knowledge of the plaintiff in regard to the machine and his capacity to know and appreciate the danger.'

In Hollingsworth v. Burns, 210 N.C. 40, 185 S.E. 476, 477, a boy of twelve skating in the street was hit by a car which admittedly was being operated in a negligent manner. Devin, J. (later C. J.), speaking for the Court, said: 'Here the plaintiff was just twelve years of age and was engaged with other boys in a childish game, on roller skates, on or near a connecting street which was ordinarily not much used. * *

'The courts recognize that the love of play is instinctive in childhood, and that children may be expected to act as children and upon childish impulses. One who possessed profound knowledge of the characteristics of human conduct said, long ago: 'When I was a child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.' 1 Cor. 13:11. The law wisely takes into consideration the fact that a small boy will have only the understanding and the thought of a child, not that of a man.'

The Commission's conclusory-finding that the plaintiff is barred of recovery by his own negligence is predicated on these inferences deduced from the plaintiff's evidence:

'That the infant plaintiff, George Lindsay Adams, was negligent in failing to keep a proper lookout so he could observe said lawn mower after he had been warned of its presence by the noise of its motor, and in failing to reduce the speed at which he was running at the time and under the circumstances herein described, and that such negligence was one of the proximate causes of said accident and the resulting damages suffered by him. ' (Italics added.)

It thus appears that the two elements of negligence found against the plaintiff, namely failure to keep a proper lookout and failure to slow down, are predicated on the finding that the plaintiff failed to take timely heed of the noise made by the motor. In so limiting the elements of negligence found against the plaintiff, the Commission appears to have understood and made allowance for these basic features of the game of chase: that the chief objective of the person being chased is to avoid being caught or tagged by his pursuer, and that much of the strategy of the one pursued, especially when about to be caught, is to elude his pursuer by dodging, shifting, or sidestepping; and that the game requires the person chased to do much of his top speed running while looking back, with eyes on his pursuer, so as to be prepared to dodge and shift when about to be tagged. Therefore, since the Commission has limited the elements of negligence found against the plaintiff to failure to keep a proper lookout and reduce speed after being warned of the presence of the mower by the nosie of its motor, the pivotal question for decision is: May negligence as a proximate cause of the plaintiff's injury be inferred from the plaintiff's failure to give earlier heed to the sound of the motor by turning sooner to avoid contact with the mower?

The only finding of the Commission as to how much...