There can be no question that an adult, thus exposing himself to peril, would be held to have brought the injury upon himself by his own act, and if his own negligence *Page 103 and want of care for his owns safety were not the direct and immediate cause of the injury, they were so contributory to is as to take away any just ground of complaint against the company. The plaintiff's case is, however, distinguished by his counsel upon the ground that his extreme youth required much greater vigilance and strict attention from the company for his protection that if of more mature years. While this is true it does not dispense with the exercise of such regard for his own safety as may be expected in one of such age, and certainly does not excuse the reckless disregard of repeated warnings given the plaintiff, and his persistent purpose to ride on the engine and hazard the consequences.
The principle to be extracted from the most approved adjudications in the United States in thus announced in a recent work: An infant, so far as he is personally concerned, should be held to such a degree of care only as is usual among children of his age, thought if his (95) own act directly brings the injury upon him, while the negligence of the defendant is only such a exposes the child to the possibility of injury, the later cannot recover damages. Shear. and Red. on Negligence, sec. 49.
"The rule of law in regard to the negligence of an adult and the rule in regard to that of an infant of tender years," remarks Mr. Justice Hunt, delivering the opinion in R. R., Co. v. Gladman, 15 Wall., 401, "is quite different. By the adult must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly, and cannot be visited upon another. Of an infant of tender years, less discretion is required, and the degree depends upon his age and knowledge."
The same rule is repeated in R. R. Co. v. Stout, 17 Wall., 657; Whart. Neg., 314.
"All that is necessary to give a right of action to the plaintiff's is the language of the Supreme Court of Missouri in a case where a child ten years of age was killed, "for an injury inflicted by the negligence of the defendant, is that the should have exercised care and prudence equal to his capacity."Roland v. R. R., 36 Mo., 484.
A child of six years was permitted by his parents to use the roadway for a playground, and he would sometimes unattended lie down upon the track. He was seen in this condition by the engineer of an approaching train who, however, could not tell whether the object seen was a bush or a human being until the engine was so near that every effort to stop it and avoid the injury was unavailing. It was held that no recovery could be had for the injury. Meek v. R. R., 52 Cal. 602. In Conley v. R. R., 4 Am. and Eng. R. R. Cases, 533, the action was *Page 104 brought by an infant of seven years for an injury attributed to the negligence of the defendant company, on the trial of which it appeared (96) that he, with other boys but little older that himself, was playing upon a car loaded with sand, which was in motion to be put on a switch when he and they were ordered to get off. In doing this the plaintiff suffered the injury for which damages were sought, but he was not permitted to recover. The ruling rests upon the opinion that there was no hazard in leaving the moving car from which care on his part would not have fully protected him. While we do not intend to express our concurrence in the ruling that the order given under such circumstances and without stopping the car showed no negligence involving liability for the consequences to one so young, were refer to the case to show that reasonable vigilance and care, such as one of the plaintiff's age is expected to give for his own safety, is required to sustain a claim for damage.
In harmony with the doctrines announced in the Supreme Court of the United States is this ruling by this Court in Manly v. R. R. 74 N.C. 655, wherein Bynum, J., referring to what is said in R. R. Co. v. Gladmand,supra, remarks:
"If by the proposition of the counsel of the plaintiff that if there were negligence on the part of the children" (one of whom had been killed by a passing train while asleep on the track), "it is not imputable to the parent who is the plaintiff, is meant that the plaintiff is entitled to recover, notwithstanding any degree of negligence on the part of the children, we cannot assent to the proposition. It has no foundation in reason and would be disastrous to commercial life."
In the present case the plaintiff willfully, after being ordered off, again secreted himself in such a place on the plow of the engine, as it was about to start, where he could not be seen — disregarding the admonition of the colored man who saw his danger — and then, alarmed, made on effort to spring to the ground. The accident was the result of his own rash conduct, and the injury he brought upon himself.
Wherein can neglect be imputed to the company or its agents? Was it in not sounding the whistle?
(97) The plaintiff did not need the warning. He knew the engine was above to move, and the signal for starting was wholly needless to him, as he already knew what that would have indicated. The omission was in no sense the cause of his misfortune or contributory to it. The engineer was sat the post of duty, and the plaintiff had occupied a place so that he should not be again ordered off and lose his ride, and at last he perhaps would have escaped if he had remained where he was and not rashly attempted to get off. We do not discover any evidence of negligence in the undisputed facts of the case, and we think the *Page 105 defendant was entitled to an instruction that upon them no negligence in the company was shown and that the plaintiff could not recover.
There must be a new trial, and it is so adjudge. Let this be certified to the end that a venire de novo be awarded in the court below.
Error. Venire de novo.
Cited: Walker v. Reidsville, 96 N.C. 385; Haynes v. Gas Co.,114 N.C. 209; Bottoms v. R. R., ibid., 712; Baker v. R. R.,150 N.C. 565; Greer v. Lumber Co., 161 N.C. 148;Alexander v. Statesville, 165 N.C. 536; Raines v. R. R.,169 N.C. 192; Foard v. power Co., 170 N.C. 52;Mullinax v. Hord, 174 N.C. 615; Fry v. Utilities Co.,183 N.C. 290; Taft v. R. R. 202 N.C. 55; Boykin v. R. R.,211 N.C. 115.