Indian Refining Co. v. Marcrum

• Decision Date: 14 April 1921
• Docket Number: 6 Div. 134
• Citation: 205 Ala. 500,88 So. 445
• Parties: INDIAN REFINING CO. v. MARCRUM.
• Court: Alabama Supreme Court

88 So. 445

205 Ala. 500

INDIAN REFINING CO. v. MARCRUM.

6 Div. 134

Supreme Court of Alabama

April 14, 1921

Appeal from Circuit Court, Jefferson County; Romain Boyd, Judge.

Action by Clyde Marcrum, by next friend, against the Indian Refining Company for damages for personal injuries. Judgment for the defendant, which on motion of the plaintiff was set aside and a new trial ordered, from which last order defendant appeals. Affirmed.

David S. Anderson and Frank Dominick, both of Birmingham, for appellant.

F.D McArthur, of Birmingham, for appellee.

MILLER J.

Clyde Marcrum, by next friend, brings this suit against Indian Refining Company. The plaintiff claims he was negligently injured by an automobile truck of defendant, and claims damage therefor in two counts in his complaint.

The cause was tried before a jury, and verdict rendered in favor of the defendant.

The plaintiff made motion for a new trial, and based it on 27 grounds. It is not necessary to consider all of them. The court granted this motion. This ruling of the court is assigned as error by the defendant.

The plaintiff was 8 years old when injured. Each count of the complaint alleges that plaintiff was 8 years old.

The defendant files three special pleas, each being contributory negligence, to each count of the complaint.

This court, in Cedar Creek Store Co. v. Stedham, 187 Ala 622, 65 So. 984, unanimously declared the rule of contributory negligence applicable to children between the ages of 7 and 14 years to be as follows:

"Between the ages of 7 and 14 years children who are compos mentis are presumed to be incapable of contributory negligence, but that a child between the ages of 7 and 14 years may be shown by evidence to be capable of contributory negligence by showing that he possesses that discretion, intelligence, and sensitiveness to danger which the ordinary child possesses when he is 14 years of age."

Do these pleas of contributory negligence measure up to the rule? We think not. Proper demurrers were assigned to each. The court overruled the demurrers. This was error.

Plea 2 avers: The plaintiff "appreciating and understanding said act and the danger thereof." Plea 3 avers: "Plaintiff appreciated and understood the same and the danger of running into said truck." The last plea (4) avers: Plaintiff "appreciating the danger of such fact and such act."

The foregoing rule requires the evidence to show that "plaintiff possessed that discretion, intelligence, and sensitiveness to danger which the ordinary child possesses when he is 14 years of age."

What the evidence must show the plea must aver. Neither plea measures up to the rule. A child 8 years old--the plaintiff--may "appreciate and understand an act and the danger of it," but did the plaintiff appreciate and understand it and the danger of it, as discretely, as intelligently, as sensitively, as an ordinary child would have done at 14 years of age? This is the rule to guide the court on the pleadings, on the evidence, and in the charge of the law to the jury. Were these defects in the pleas cured by the oral charge of the court to the jury? We think not. The charge of the court material on this point reads:

"Between 7 and 14 the law says prima facie that a child

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