STACY, C. J., dissenting.

CONNOR, J., concurs in dissent.

Action for damages for personal injury resulting from being struck by the automobile truck of defendant, while plaintiff, a boy of twelve years of age, was playing with some other children on or near a street in the city of Charlotte. It appears that defendant's truck was being driven by his employee on this occasion at a high rate of speed on the left side of the street, at a place where children were playing.

Issues of negligence, contributory negligence, and damages were submitted to the jury, resulting in a verdict thereon in favor of the plaintiff. From judgment on the verdict defendant appealed.

DEVIN, J.

It is conceded that there was ample evidence of negligence on the part of the defendant's driver warranting the verdict on that issue.

But the appellant's principal assignment of error is to the failure of the judge below to hold, as a matter of law, that the plaintiff on his own testimony was guilty of contributory negligence, barring recovery, and that therefore the motion for judgment of nonsuit should have been allowed.

This renders it necessary to examine the plaintiff's testimony. Pertinent to the question involved, the plaintiff testified substantially as follows:

"I got hurt about 4:30 p.m., 9 January, 1935. It was near my home. Four boys were with me playing hockey with a can on Oakland Avenue. Oakland Avenue connects Central and Eighth streets and is not traveled much. We had skates on our feet. The last I remember I was in street, next came to in hospital, did not hear any automobile horn. I was in the street when I got hit. I was on the sidewalk just before I got hit. We were playing hockey with a can, four of us with skates on. I hit the can past them and scored a point. I was going faster. I cut up on the driveway and went on down the street, and started out in the street when Harlan called me, and I couldn't stop. So, I decided to go on over and when I got about the middle of the street that is all I remember. I was in the driveway and I saw I couldn't stop, I couldn't make it across the street. Harlan holloed [hollered] a car was coming. The car got me before I got across. I had both skates on. I was going out into the driveway and he holloed [hollered] and I curved and went across the grass, but it didn't stop me, and I just went on out. I was going out the driveway, and when he called I cut to go across the grass, and I cut off a little corner of grass, but it didn't stop me. The grass was between the sidewalk and the curb of the street. I was going to skate down the driveway into the street. I thought if I could get on the grass I could stop before I got out into the street. I did the best I could to make it across ahead of this automobile. The boy holloed [hollered] at me just as I was going down the driveway to go into the street, and then I cut across and hit the corner of the grass, but I couldn't stop. Then I went out into the street. I was going pretty fast and Harlan holloed, [hollered,] `Look out, there's a car coming.' I realized then if I got out into the street I was liable to be hit, and in order to stop I got on the grass, hoping that I could stop. I was going so fast I couldn't, and I went out into the street. I was not hit before I got to the center of the street, more on the left side of the street. When Harlan holloed [hollered] I realized that I ought not to go out in the street, and that is the reason I jumped on the grass. I didn't know where the car was, I didn't see it when I started. I tried to stop because he holloed [hollered] at me that a car was coming. I hit the grass before I went into the street. It didn't stop me. I rolled right across the grass plot and over the curbing into the street. I was going so fast down that incline to the street that I rolled over that grass into the street, and couldn't stop. I was already started in the street when he told me an automobile was coming. I was going too fast to help it; I was already started in the street. I did the best I could to stop. I didn't stop in the center. I thought I could make it and missed it."

The rule as to the contributory negligence of a child has been repeatedly laid down by this Court. In the recent case of Morris v. Sprott, 207 N.C. 359, Schenck, J., speaking for the Court, thus states the law: "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 age may be expected to possess; and this is usually, if not always, when the child is not wholly irresponsible, a question of fact for the jury." Rolin v. Tobacco Co., 141 N.C. 300; Alexander v. Statesville, 165 N.C. 527; Fry v. Utilities Co., 183 N.C. 281; Ghorley v. R. R., 189 N.C. 634; Hoggard v. R. R., 194 N.C. 256; and Tart v. R. R., 202 N.C. 52.

In Rolin v. Tobacco Co., supra, Connor, J., uses this language: "Within certain ages, courts hold children incapable of contributory negligence. We do not find any case, nor do we think it sound doctrine, to say that a child of twelve years comes within that class. Adopting the standard of the law in respect to criminal liability, we think that a child under twelve 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."

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. In the excitement of play he skated down an inclined driveway leading to the street, with such speed that he was carried out into the street and struck by defendant's truck, which was being operated with excessive speed, on wrong side of the road, and without sounding the horn. Too late, he was warned by a companion of the approach of the truck and tried to avoid the accident. He said, "I did the best I could to stop." He was struck and permanently injured.

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." I 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 street was open for all, children as well as adults, and the use thereof by children for the purpose of play and sport is not necessarily an illegitimate use. Hoggard v. R. R., supra.

The able counsel for the defendant frankly admitted that the ruling of the court below in submitting the question of contributory negligence to the jury, under appropriate instructions, was in line with the authoritative decisions of this Court, but he argued that the facts here went beyond the principle laid down in the decided cases, and that the Court should hold as a matter of law that plaintiff's contributory negligence barred his recovery, and that his motion for judgment of nonsuit on that ground should be allowed.

We cannot so hold. To do so would be to require of the plaintiff a higher degree of care, judgment, and discretion than one of his age and experience would be expected to possess. That which might have constituted an error of judgment on the part of an experienced adult may not in law be so charged to a child exercising only the prudence to be expected of one of his age. The question of the contributory negligence of the plaintiff, considering his tender years and in the light of all the surrounding circumstances, was properly submitted to the jury.

The exception to the charge of the court below on the issue of damages cannot be sustained.

No error.