Hoots v. Beeson, 456

• Decision Date: 02 February 1968
• Docket Number: No. 456,456
• Citation: 272 N.C. 644,159 S.E.2d 16
• Parties: Dan HOOTS, Administrator of the Estate of Timothy Ray Hoots v. Ray Ellis BEESON.
• Court: North Carolina Supreme Court

Page 16

159 S.E.2d 16

272 N.C. 644

Dan HOOTS, Administrator of the Estate of Timothy Ray Hoots v. Ray Ellis BEESON.

No. 456.

Supreme Court of North Carolina.

Feb. 2, 1968.

H. Smith Williams, Yadkinville, and R. Lewis Alexander, Elkin, for plaintiff appellant.

Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, Winston-Salem, for defendant appellee.

BOBBITT, Justice.

There was ample evidence to warrant submission of the negligence and contributory negligence issues and to support the jury's findings thereon. The jury answered the negligence issue, 'Yes.' The question for decision is whether there was error in the portion of the court's charge relating to the contributory negligence issue.

Plaintiff excepts, Inter alia, to the following portions of the court's instructions to the jury: (1) 'It being the law, members of the jury, that where both parties to an action like this are negligent, that neither can recover, that the negligence of one offsets the other, so we have here the issue of contributory negligence and the law here, members of the jury, is the same as I have just given you earlier in the charge in regard to actionable negligence, except that contributory negligence here applies to the acts of the plaintiff intestate, Timothy Ray Hoots, whereas actionable negligence in the preceding issues applies to the acts of the defendant.' (2) 'Upon this second issue, rephrasing it, did the plaintiff's intestate fail to exercise that degree of care which a reasonably prudent Person would have exercised under the same or similar circumstances and when charged with a like duty, and, if so, was his failure to do so one of the proximate causes of the death of the plaintiff's intestate.' (Our italics.)

The intructions quoted above, standing alone, are erroneous in that they fail to take into consideration the fact Timothy was eleven years old. They are prejudicial to plaintiff unless elsewhere in the charge the court gave correct instructions concerning the significance of Timothy's age and the consideration to be given thereto in the jury's determination of the contributory negligence issue.

The court gave this general instruction: 'Whether a child of tender years can exercise due care under the circumstances is to be determined in relationship to the age, knowledge, intelligence, experience, discretion of the particular child involved.'

The only instruction In the original charge bearing upon the contributory negligence issue in which reference is made to the ages of children and particularly to the age of Timothy is the following: 'The court instructs you that the evidence in this case tends to show that the plaintiff's intestate at the time of his injury was a boy 11 years of age. The rule of law in regard to the negligence of an adult person and the rule of law with regard to a child of tender years is quite different. By adult there must be given that care and attention that is ordinarily exercised by a person of ordinary intelligence and discretion. Of a child of tender years less intelligence and discretion is required and the degree depends upon his age and knowledge. Of a child of Three years less discretion would be required than one of Seven, and of a child of Seven less than one of Twelve or Fifteen. The care required is according to the capacity of the child, and this is to be determined in each case by the circumstances of that case. All that is required of an infant is that he exercise due care equal to his maturity and capacity.' (Our italics.)

The instruction quoted in the preceding paragraph, in all material respects, is in the language of an instruction approved in Leach v. Varley, 211 N.C. 207, 189 S.E. 636, an action in which the plaintiff failed to recover because the jury found the intestate, the plaintiff's eight and one-half year old daughter, guilty of contributory negligence. In Leach, as in the original charge in the present case, the instruction contained no reference to a presumption relating specifically to a child between the ages of seven and fourteen. The instruction approved in Leach is in conflict with decisions discussed below.

In this jurisdiction, a child under seven years of age, as a matter of law, is incapable of contributory negligence. Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124, and cases cited. With reference to a child fourteen years of 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.' Welch v. Jenkins, 271 N.C. 138, 155 S.E.2d 763, and cases cited.

The opinion in Leach states the instruction aproved therein 'is almost in the exact language Used' in Alexander v. City of Statesville, 165 N.C. 527, 81 S.E. 763. (Our italics.) In Alexander, a personal injury action, the plaintiff was a boy 'about 7 years old.' Issues of negligence, contributory negligence and damages were submitted. The jury answered the negligence issue, 'No,' and did not answer the other issues. Although the jury's answer to the negligence issue was determinative, the opinion of Walker, J., is replete with quotations from this and other jurisdictions relating to rules applicable in determining whether a child of tender years is contributorily negligent, including a quotation, in substantial accord with the instruction approved in Leach, from the opinion of Mr. Justice Hunt in Washington and Georgia Railroad Company v. Gladmon, 85 U.S. (15 Wall.) 401, 21 L.Ed. 114 (1872). The plaintiff therein, a seven-year-old boy, sued a street railway company. The case was heard by the Supreme Court of the United States on defendant's appeal from an adverse verdict and judgment in a trial court of the District of Columbia. The defendant assigned as error the court's failure to instruct the jury As requested in relation to contributory negligence. It was held the requested instructions were properly refused because they failed to take into account the fact the plaintiff was a seven-year-old boy.

The opinion in Leach also refers to the instruction aproved therein as having been approved in Boykin v. Atlantic Coast Line R.R., 211 N.C. 113, 189 S.E. 177. In Boykin, the plaintiff's intestate was a ten-year-old boy. The plaintiff appealed from a judgment of involuntary nonsuit entered at the conclusion of the plaintiff's evidence on the ground the plaintiff's intestate was guilty of contributory negligence as a matter of law. In reversing the nonsuit, Stacy, C.J., stated: 'There is A presumption which comes to the aid of a child of tender years.' (Our italics.) Caudle v. Seaboard Air Line R.R., 202 N.C. 404, 163 S.E. 122, is cited in support of the quoted statement. The opinion in Boykin refers to and quotes from Rolin v. R. J. Reynolds Tobacco Co., 141 N.C. 300, 53 S.E. 891, 7 L.R.A.,N.S., 335.

In Rolin, Connor, J., quotes from the opinion of Haralson, J., in Tutwiler Coal, Coke and Iron Co. v. Enslen, Adm., 129 Ala. 336, 30 So. 660, the following: 'Between 7 and 14, a child is Prima facie incapable of exercising judgment and discretion, but evidence may be received to show capacity.'

In Caudle, the plaintiff's intestate was a twelve-year-old boy. A demurrer on the ground the facts alleged in the complaint disclosed the plaintiff's intestate was contributorily negligent as a matter of law, was overruled. This Court affirmed. With reference to contributory negligence, the opinion of Clarkson, J., contains this statement: 'Prima facie presumption exists that an infant between ages of 7 and 14 is incapable of contributory negligence, but presumption may be overcome. Test in determining whether child is contributorily negligent is whether it acted as child of its age, capacity, discretion, knowledge, and experience would ordinarily have acted under similar circumstances.' In support of the quoted statement, the opinion cites Chitwood v. Chitwood, 159 S.C. 109, 156 S.E. 179.

In Chitwood, the opinion contains the following: '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 (citations); that between the ages of 7 and 14 there is a prima facie presumption of such...