Frank Fulton PHILLIPS, Administrator of William Wayne Phillips, deceased,
v.
NORTH CAROLINA RAILROAD COMPANY and Southern Railway Company.
No. 529.
Supreme Court of North Carolina.
May 23, 1962.*605 W. H. Beckerdite, Kannapolis, and E. T. Bost, Jr., Concord, for plaintiff appellant.
Hartsell, Hartsell & Mills, by William L. Mills, Jr., Concord, and W. T. Joyner, Raleigh, for defendants appellees.
PARKER, Justice.
All of the plaintiff's assignments of error are to the charge of the court to the jury; he has none to the evidence.
Assignment of error number one relates to the charge on the second issue, contributory negligence. On that issue the court correctly placed the burden of proof on defendants, and charged as follows:
"(Now, inasmuch as the issue is submitted to you on contributory negligence, the Court will have to define contributory negligence and very briefly it is this; there is no basic difference between negligence on the part of the defendant and negligence on the part of a plaintiff, or a plaintiff's intestate, except ordinarily we refer to negligence on the part of the plaintiff or plaintiff's intestate as contributory negligence.)
"(The same rule of due care which is required of a defendant is likewise *606 required of a plaintiff or in this case the plaintiff's intestate, and the test as to the plaintiff's intestate's conduct in this case will be whether or not he exercised due care for his own safety, and if he failed whether such failure concurred and cooperated with any actionable negligence, if you find there is actionable negligence on the part of the defendant, as a proximate cause or one of the proximate causes of his injury.)
"Now, as to this second issue, Ladies and Gentlemen of the jury, the Court charges you that the law of North Carolina is to this effect. There has been evidence uncontradicted in this case that the plaintiff's intestate was some thirteen years and eight or nine months of age. The law of North Carolina is as follows: There is a prima facie presumption in this state that a child between the age of seven and fourteen years is incapable of contributory negligence, but this presumption may be overcome. Now, what do we mean by prima facie presumption? It merely means that that is enough to carry it to the jury on that presumption alone, but the law also says that this presumption may be overcome by evidence. The test which you will use in arriving at your answer to the second issue, if you reach the second issue, is this: it is up to you to determine from the evidence you have heard, and the law that the Court has given you about the prima facie presumption, as to whether or not on the 30th day of January, 1953, William Wayne Phillips acted as a child of his age, of his capacity, of his knowledge, of his intelligence, of his discretion, and of his experience would have acted under similar circumstances."
Plaintiff excepts to the parts of the charge above in parentheses, and assigns them as error.
Plaintiff's contentions in his brief are: The court in the parts of the charge challenged as set forth above in parentheses made no distinction between the rule applicable to negligence in respect to a boy under fourteen years of age, and the rule applicable to negligence on the part of defendant railroad companies or of an adult person. While the court immediately after the challenged parts of the charge instructed the jury in respect to the prima facie presumption that a child between the ages of seven and fourteen years is incapable of contributory negligence, this part of the charge is inconsistent and in conflict with the challenged parts of the charge on a vital point of the case. That this entitles him to a new trial.
In our opinion such contentions are untenable. Under our decisions an infant between the ages of seven and fourteen years charged with contributory negligence is not held to the same degree of care for his own safety as an adult person so charged. Caudle v. Seaboard Air Line R. R., 202 N.C. 404, 163 S.E. 122; Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124; Rolin v. R. J. Tobacco Co., 141 N.C. 300, 53 S.E. 891, 7 L.R.A.,N.S., 335. See Annotation 107 A.L.R. p. 7Standard of care required of children. The court in its charge immediately after the challenged part of it instructed the jury, in substantial compliance with our decisions above cited, in respect to the standard of care by which to measure the conduct of William Wayne Phillips, a thirteen-year-old child, as regards the question of contributory negligence on his part. Reading this charge on contributory negligence as a whole and not in detached fragments, Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19, it seems to us and we so hold, that there is no inconsistency or conflict in it, that the jury must have understood from the charge that the child here was not required by law to exercise the degree of care for his own safety as required of an adult, but that the standard by which to measure his conduct, as regards *607 contributory negligence, is that ordinarily exercised by children of the same age, capacity, discretion, knowledge and experience, under the same or similar circumstances, and further, that there is no reasonable cause to believe that the jury was misled or misinformed in respect thereto. To require a trial judge "to state every clause and sentence so precisely that even when lifted out of context it expresses the law applicable to the facts in the cause on trial with such exactitude and nicety that it may be held, in and of itself, a correct application of the law of the case would exact of the nisi prius judges a task impossible of performance." Vincent v. Woody, 238 N.C. 118, 76 S.E.2d 356. Plaintiff's assignment of error number one is overruled.
Plaintiff's assignments of error numbers two and three are that the court failed to comply with the provisions of G.S. § 1-180, in respect to the third issue, last clear chance, and failed to give equal stress to the contentions of the plaintiff and defendants. These assignments of error do not definitely and clearly present the error relied on, in that they contained no part or parts of the charge, and we must go beyond these assignments of error on "a voyage of discovery" through the charge to learn what the questions are. This Court said in Nichols v. McFarland, 249 N.C. 125, 105 S.E.2d 294:
"Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555, as interpreted in the decisions of this Court, require: `Always the very error relied upon should be definitely and clearly presented, and the Court not compelled to go beyond the assignment itself to learn what the question is.' State v. Mills, 244 N.C. 487, 94 S.E.2d 324; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Parsons v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Porter v. American Cigar Box Lumber Co., 164 N.C. 396, 80 S.E. 443; Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286. The objectionable assignments in their present form would require the Court to undertake a voyage of discovery through the record to ascertain what the assignments involve. This the Court will not do. Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735."
Nevertheless, we have examined the court's charge on the third issue, last clear chance. To submit an issue of last clear chance there must be both allegata and probata. Gunter v. Winders, 256 N.C. 263, 123 S.E.2d 475; Wagoner v. North Carolina R. R., 238 N.C. 162, 77 S.E.2d 701; Bailey v. North Carolina R. R. and King v. North Carolina R. R., 223 N.C. 244, 25 S.E.2d 833. Assuming, but by no means conceding, that plaintiff has both allegata and probata, the court's charge on this issue was far more favorable to plaintiff than he was entitled to.
The court charged:
"What is the last clear chance doctrine? It is the duty imposed by the humanity of the law upon a party to exercise ordinary care in avoiding injury to another who has negligently placed himself in a situation of danger."
For plaintiff to invoke the last clear chance doctrine, he must establish these four elements: One, that his intestate negligently placed himself in a position of peril from which he could not escape by the exercise of reasonable care; two, that the defendant knew, or by the exercise of reasonable care could have discovered, his intestate's perilous position and his incapacity to escape from it before he was injured and killed by defendant; three, that defendant had the time and means to avoid injury and death to his endangered intestate by the exercise of reasonable care after it discovered, or should have discovered, his intestate's perilous position and his incapacity to escape from it; and four, that defendant negligently failed to use *608 the available time and means to avoid injury and death to his endangered intestate, and for that reason injured and killed him. Wade v. Jones Sausage Co., 239 N.C. 524, 80 S.E.2d 150, and the numerous cases there cited.
This Court said in Barnes v. Horney, 247 N.C. 495, 101 S.E.2d 315:
"Liability under the last clear chance, or discovered peril, doctrine is predicated, not on any original negligence of the defendant, but upon his opportunity to avoid injury after discovering the perilous position in which another has placed himself."
Plaintiff's assignments of error numbers two and three are overruled.
The remaining assignments of error, numbers four and five, are formal, and are overruled.
Apparently this was the first time William Wayne Phillips, a fine, intelligent thirteen-year-old boy, crossed a standing train, and this one time resulted in his death: a stark, heart-breaking tragedy. The case was for the jury: it has returned its verdict adverse to plaintiff. In the trial below we find
No error.