Chitwood v. Chitwood

• Decision Date: 12 December 1930
• Docket Number: 13038.
• Citation: 156 S.E. 179,159 S.C. 109
• Parties: CHITWOOD v. CHITWOOD et al.
• Court: South Carolina Supreme Court

156 S.E. 179

159 S.C. 109

CHITWOOD v. CHITWOOD et al.

No. 13038.

Supreme Court of South Carolina

December 12, 1930

Appeal from Common Pleas Circuit Court, Richland County; M. S Whaley, County Judge.

Action by James William Chitwood, by his guardian ad litem, Lillian F. Chitwood, against L. A. Chitwood and J. E. Carroll, doing business under the firm name and style of Chitwood & Carroll. Judgment for plaintiff, and defendants appeal.

Affirmed.

Roger M. Heyward and Paul A. Cooper, both of Columbia, for appellants.

Heyward Brockinton and G. Duncan Bellinger, both of Columbia, for respondent.

STABLER J.

The gist of this action, one for personal injuries alleged to be due to negligence of the defendants, is contained in paragraph 3 of the complaint: "That heretofore on or about July 22, 1925, the defendants, L. A. Chitwood and J. E Carroll, doing business under the firm name and style of Chitwood and Carroll, were engaged in constructing a bridge over the Great Pee Dee River for the State Highway Department, and the plaintiff, James William Chitwood, a boy of about fifteen (15) years of age, was employed by the defendants as a laborer on said job; that after the plaintiff's work was completed, on or about the 22nd day of July, 1925, the plaintiff, James William Chitwood, was directed by the defendants, their agents or servants, to carry some long heavy iron pipes, about thirty (30) feet long, across the bridge to a point where the pipe line was being constructed; that in carrying the pipe across the bridge the plaintiff had to walk across a stringer which had been erected for the purpose of carrying on the work of the bridge and in carrying one of the heavy unwieldy pipes above mentioned across said structure, the plaintiff became unbalanced and fell through the structure to the ground below, a distance of some twenty (20) feet, breaking his forearm and causing him severe physical pain and mental suffering and bruising other parts of his body and causing him to lose several weeks from his work."

The defense was a general denial, contributory negligence, and assumption of risk. The trial resulted in a verdict for the plaintiff. Defendants appeal from portions of the charge and from the refusal of their motions for a directed verdict and for a new trial.

In charging on contributory negligence, the trial judge told the jury: "So then you would have to ferret that issue out in the light of the facts, whatever they are, and see if the plaintiff was guilty as charged here of contributory negligence. He owed the duty of exercising ordinary care and prudence under all the surrounding facts and circumstances. You would have to test that out. You would not test it out by the same yardstick that you would the act of an adult. If he was between 14 and 15 years of age then the test that you would apply, the yardstick would be that he would have to exercise that ordinary care and prudence which a boy of his age, of ordinary intelligence and understanding and ordinary reasonable judgment would have exercised. If he lived up to that, then there would be no negligence on his part. If he failed to live up to that that there would be negligence on his part and, of course, when one hires and puts to work a boy of fourteen or fifteen, one necessarily knows that and has to assume that the yardstick by which that boy's act is to be measured is not the act of an adult but it is to be that yardstick which I have already given you to use as a test."

Exceptions to the italicized portions of this charge raise the question as to the degree of care required of the plaintiff, a minor about 14 1/2 years of age, in the determination of his guilt or lack of guilt of contributory negligence.

Confusion sometimes arises in cases of this kind between the rule as to capacity and that as to due care. As to capacity, it is held in this state, by analogy to the criminal law, that an infant under 7 years of age is conclusively presumed to be incapable of contributory negligence (Dodd v. Railway Company, 95 S.C. 9, 78 S.E. 525; Sexton v. Construction Company, 108 S.C. 516, 95 S.E. 129); that between the ages of 7 and 14 there is a prima facie presumption of such incapacity, which, however, may be overcome by evidence showing capacity (Tucker v. Buffalo Mills, 76 S.C. 539, 57 S.E. 626, 121 Am. St. Rep. 957); and, by clear implication, that an infant of the age of 14 years or over will be presumed capable of contributory negligence in the absence of proof to the contrary (Tucker v. Buffalo Mills, supra; Dodd v. Railway Company, supra). In the present case the trial Judge told the jury, in effect, that the plaintiff was capable of contributory negligence. There was no exception to this instruction, and we apprehend that no such exception could be sustained; there being nothing in the evidence tending to overcome the presumption of capacity.

Coming then to the question of due care: It is almost universally held that the standard by which the conduct of an infant is to be measured, in determining the question of contributory negligence, is "not whether the child acted as an ordinarily prudent child of its age would have acted, but whether it acted as a child of its age, and of its capacity, discretion, knowledge, and experience would ordinarily have acted under the same or similar circumstances." The authorities on this point are so numerous that it appears unnecessary to cite them, but reference may be had to a long array of cases in the annotation beginning at page 10 of L. R. A. 1917F; and the rule seems to have been recognized in this state. Stanton v. Interstate Chemical Corp., 97 S.C. 403, 81 S.E. 660. In some cases it is even held that the age of the infant is of little significance except as it bears on the question of knowledge, discretion, capacity, etc. W. & A. R. Co. v. Young, 81 Ga. 397, 7 S.E. 912, 12 Am. St. Rep. 320; Bess v. R. Co., 62 Kan. 299, 62 P. 996.

In B. & A. R. Co. v. Mattison, 166 Ala. 602, 52 So. 49, 52, the following excellent brief discussion of the subject appears: "There is no inflexible rule by which we can determine the capacity of all children, under all circumstances, for observing and avoiding danger; each child is bound to use the reason it possesses and to exercise the degree of care and caution of which it is capable. One child may understand and appreciate one danger and not another. Another child, of the same age as the first, may understand the danger the first does not, and be insensible to the danger of which the first was aware. A child raised in the city may be perfectly capable of understanding and avoiding the danger of street cars, railroads, and crowded streets, but insensible of the dangers of a mowing or threshing machine, a foot adz, or a scythe blade, etc.; while a child of the same age and average intelligence, raised on a farm would fully comprehend and understand the dangers of the latter class, but be wholly unconscious or ignorant of those of the former. Some children at the age of 7 better understand the dangers of trains and cars than do others at 14. Therefore, the capacity, the intelligence, the knowledge, the experience, and discretion of the child are always evidentiary circumstances. There is no ideal standard by which the court or jury can determine whether a given child in a particular case exercised that measure of care which the law requires."

While it follows from what we have said that the charge of the trial judge in the instant case was erroneous, we think the error was harmless, for the reason that there is nothing in the record to indicate that the intelligence, understanding experience, and judgment of the plaintiff were above or below those of an ordinary...