concurring in a new trial: In this case the plaintiff’s intestate, a boy 11 years, 10 months, and 23 days old, jumped up behind an ice wagon passing through the streets of Charlotte and was killed in a collision between the ice wagon and the ear of the Charlotte Street Railway Company. There was an ordinance of the city of Charlotte which made his conduct a misdemeanor, and there was a standing order by the Standard Ice and Fuel Company, the owners of the wagon, against such conduct, and the boy had no permission from the company, or permission of the driver, to ride on the wagon on that or any occasion. At the trial of the case there were two patent errors which require a new trial:
*2951. Tbe judge charged the jury that the plaintiff’s intestate “could not be guilty of contributory negligence because under 12 years of age.”
2. The case should have been nonsuited on the further ground that the defendant owed no duty to the boy, who was illegally riding on the rear of the wagon in violation of the city ordinance and standing orders of the defendant company, except that it should not injure him wantonly or willfully, which is not even suggested.
As to the first proposition: The boy jumped upon the defendant’s wagon, with full legal notice that he was forbidden to do so by an ordinance of the city, and the owners had constantly forbidden any one to do so. Furthermore, the court in this case charged the jury: “If you shall find by the greater weight of the evidence in the case that the plaintiff’s intestate, at the time he was killed, was under 12 years of age, then there was a presumption of law that the boy was incapable of so understanding and appreciating danger from the alleged negligent acts or conditions produced by others as to make him guilty of contributory negligence.” A presumption of law is irrebuttable, and therefore this charge was, in effect, that if the boy was under 12 years of age he could not be guilty of contributory negligence. The decisions of the courts,' without exception, are all to the contrary of this. Whether a boy of that age could be guilty of contributory negligence or not depends upon the findings of fact by the jury under proper instructions as to the capacity of the boy and the duty which the defendant owed to the boy under those circumstances. See Jacobs v. Koehler (N. Y., L. R. A., 1917, F. 7, and annotations thereto, pp. 10 to 164, on “Contributory Negligence of Children” — very exhaustive).
It is impossible to reconcile the charge in this case with the ruling by which the plaintiff, a younger.boy, was nonsuited in Butner v. Brown, 182 N. C., 692 (last term), because he was held conclusively guilty of contributory negligence. In this case a boy a year older was held by the trial judge incapable of contributory negligence. In both cases a jury trial of this issue was denied, but for absolutely opposite reasons. By no process of reasoning can the two decisions be reconciled. There are probably in this State more than 50,000 milk wagons, grocery, and other store wagons, express wagons, and other vehicles employed in the discharge of similar duties. All their owners can do to prevent such accidents as this is to prohibit boys engaging in the sport from riding behind their wagons, as was done on this occasion. This prohibition was supplemented, in this instance, by the public ordinance of the city of Charlotte, of which the public are presumed to have notice. The company assumed no duty towards the boy, for it was not a common carrier. It did not injure him by any intentional act on the part of any of its employees.
*296If, under these circumstances, the owners of these thousands of vehicles, engaged in the necessary traffic of our streets, are to be made insurers of the safety of all boys who are injured while riding on the rear of their wagons — for it is insurance if there is a legal presumption that a boy of that age cannot be guilty of contributory negligence — then this decision will have added immensely to the liability of all persons or companies engaged in that or any similar business.
It is not too strong to say that there can be found no statute nor any decision which will justify the charge which the court gave, that a boy of that age, “as a presumption of law,” could not be guilty of contributory negligence. Aside from, the fact that the contrary was held in the Butner case, at the last term, and in numerous other cases, in Baker v. R. R., 150 N. C., 562, this subject was fully discussed and it was determined by a unanimous Court as to the inquiry. “At what age must the responsibility of an infant for contributory negligence commence?” that upon all the authorities, “An infant’s responsibility, so far as he is personally concerned, is held to be such care and prudence as is usual among children of the same age, and if his' own act directly brings the injury upon himself, while the negligence of the defendant is only such as exposes the infant to the possibility of injury, the latter cannot recover.” The Supreme Court of the United States has subsequently held the same to be sound law.
In Wilson v. R. R., 66 Kansas, 118, the Court held that where a boy 12 years of age was swinging or jumping from one freight car to another and fell and was injured, he was guilty of contributory negligence as a matter of law. ' •
In Jollimore v. Connecticut Co., 86 Conn., 314, it was held that a bright boy 11 years of age, who was playing in the streets and was killed by a street car, was guilty of negligence as a matter of law.
In Moran v. Smith, 114 Me., 55, it was held that a child 8 years old, who attempted to run across the street in the face of an approaching automobile, and who was struck and injured, was guilty of contributory negligence.
In Baker v. R. R., 150 N. C., 565, above cited, this Court, in discussing the question of contributory negligence, and whether it was a question for the court or the jury, says: “The responsibilities of infants are clearly defined by text-writers and courts. At common law, fourteen was the age of discretion in males and twelve in females. At fourteen an infant could choose a guardian and contract a valid marriage. After seven, an infant may commit a felony, although there is a presumption in his favor which may, however, be rebutted. But after fourteen an infant is held to the same responsibility for crime as an adult.” And then this opinion adds almost in the same words of the later case of Foard *297v. Power Co., 170 N. C., 48, as follows: “We find in tbe books many cases where children of various ages, from seven years upward, have been denied a recovery because of their own negligence.”
In Alexander v. Statesville, 165 N. C., 528, it was held by Mr. Justice Walker that the question whether a child is guilty of contributory negligence is a question for the jury upon the evidence as to his age and capacity, and in that instance held that there, where the plaintiff was a boy seven years old, the court .properly left the question of contributory negligence to the jury. To the same effect, Raines v. R. R., 169 N. C., 189. But in the present case the judge relieved the jury of deciding that question by telling them that as a matter of law “a child under 12 years of age could not be guilty of contributory negligence.” He lacked a month and 7 days of being 12 years old.
Secondly. Irrespective of the erroneous charge in regard to the boy under 12 being incapable of contributory negligence, this case presents the question of the responsibility of the owner of a wagon, or other ordinary vehicle in common use upon the streets, for lawful purposes to a trespasser, or bare licensee upon such vehicle.
The settled principles applicable are:
1. The plaintiff’s intestate at the time of his injury, upon this evidence, was a trespasser on the defendant’s wagon, and, as such, exposed himself to any risk incident to his position. The defendant did not willfully or wantonly injure him, nor was he purposely injured by the acts of its employees. As to negligence in the collision between the defendant’s wagon and the street car, that was a matter between those companies, and in no wise affected the duty of the defendant to the intestate.
2. Even if the intestate had been on the wagon with the implied consent of the defendant company, he was there solely for his own pleasure and purposes, and was at most a bare licensee. He was not injured by any defect in the construction or use of the ice wagon, and there was no breach of duty towards him by the defendant company. No phase of the evidence presents any aspect of willful or wanton conduct to the plaintiff’s intestate.
Thirdly. In this case, whether the defendant or the street car company was negligent in causing the collision is a matter which does not affect the liability of the defendant towards the boy.
He was forbidden to ride on the wagon by the authorities of the company and by an ordinance of the city, and did so at his own peril. No employee of the defendant company injured him, and there is an entire absence of allegation or evidence that he was willfully or wantonly injured by the defendant or any of its employees.
*298Tbe plaintiff’s intestate was “intelligent for bis age”; was prepared to enter tbe fifth grade in school, showing he had advanced in the city schools year by year. The evidence is that there was no obstruction between the wagon and the oncoming car. The intestate knew necessarily the danger of a collision between the street car and the wagon. It cannot be said that a 12-year-old boy of normal intelligence did not realize the danger he assumed in jumping upon the wagon. There was no difficulty about his getting off the wagon as easily as he got oh, and the only reasonable explanation of his remaining on is that he was negligent of the danger he was assuming.
Neither is this case like Pierce v. R. R., 124 N. C., 83, where the boy jumped on the rear of a shifting engine and was knocked off by the fireman throwing a piece of coal at him. The deceased in this case was not injured by any act of any employee of the defendant company. Nor is it the case where the boy was attracted by a novelty as in the “attractive nuisance” cases, nor yet is it an instance where the boy was permitted to ride on the wagon by the custom or consent of the management of the defendant company. On the contrary, it is in evidence that the defendant had given the strictest orders that boys should not be so permitted to ride on their wagons, and the city of Charlotte had passed an ordinance forbidding them to do so and making it a misdemeanor. The defendant had done everything in its power to prevent the deceased committing this trespass, and to prevent boys from exposing themselves to the danger of so doing.
In Thompson on Negligence, secs. 946 and 949, discussing the question as to who are' trespassers or bare licensees, says: “One entering the premises of another with his consent, but without his invitation, and not in the discharge of any public or private duty, is a bare licensee within the rules governing this branch of the law of negligence.”
The fact that the plaintiff’s intestate was a boy 12 years of age is not an exception to this rule. Judge Thompson says in the same work (see. 1025) : “The generally accepted rule does not impose upon the owner or occupier of premises the duty to exercise a greater degree of care in anticipation of their invasion by trespassing children. No distinction is made between trespassers as to their age. Both children and adults take the premises as they find them.”
In Peterson v. R. R., 143 N. C., 265, where the plaintiff went upon a railroad train at a stop for the purpose of buying fruit from the fruit vendor on the train, and was hurt by the negligent movement of the train, Connor, J., declared the relation and obligation of the parties to be as follows: “When the plaintiff went into the train at the station for the sole purpose of purchasing fruit, without invitation or induce*299ment, but simply by tbe silent acquiescence of defendant’s agent, be was a mere permissive licensee, and took tbe risk incident to tbe moving of tbe train, and, in tbe absence of any wanton injury, tbe motion for nonsuit should bave been allowed.”
In tbis instance it is clear tbat tbe intestate was simply a trespasser, but if be were a licensee, Judge Connor, in Peterson v. R. R., 143 N. C., 265, tbus lays down tbe well established rule: “A licensee who enters upon premises by permission only, without any enticement, allurement, or inducement being held out to him by tbe owner or ocoupant, cannot recover damages for injuries caused by obstruction or pitfalls. He goes at bis own risk and enjoys tbe license subject to its concomitant perils.”
Tbis case is much stronger for tbe defendant. If it were a fact tbat tbe intestate bad seen other boys riding on tbe steps of tbe ice wagon, it was not an implied permission to him to so ride. Certainly it was not an invitation or inducement. Tbe boy was not on tbe step by any invitation or offer to give him ice or to take a ride. Tbe riding on tbe wagon was positively against the rules of tbe defendant company and tbe driver testified, without contradiction: “My instructions, without exception, were to keep all persons off tbe wagon.” Indeed, every driver who went upon tbe stand testified tbat be did tbe best be could to keep boys off. In Briscoe v. Power Co., 148 N. C., 407, where tbe intestate was a boy 13 years of age and fell into a well of hot water not properly covered over, tbe Court held him to be a trespasser, or, at most, a bare licensee, and uses tbis expression, “If tbe exception is to be extended to tbis case, then tbe rule, indeed, as to trespassers must be abrogated as to children, and every owner of property must, at bis peril, make bis premises child-proof.”
There is absolutely no evidence in tbis case to justify tbe submission of tbe issue of wanton or willful negligence or reckless negligence, and tbe court erred in refusing tbe request to charge tbe jury tbat there was no evidence of willful or wanton negligence on tbe part of tbe defendant.
There is no evidence in tbis case tbat tbe intestate bad ever before ridden on tbe wagon, and tbe evidence is tbat all drivers tried to keep tbe children off tbe wagons, and tbat the instructions from the company to do tbis were emphatic and repeated. Besides, as already stated, tbe ordinance of tbe city of Charlotte made it a misdemeanor for any one to “ride or jump onto any vehicle without tbe consent of tbe driver thereof,” or for any person to “bang on to any vehicle whatsoever.” Viewing tbe evidence in its strongest light in favor of tbe plaintiff, tbe motion for nonsuit should bave been allowed. There was no evidence of breach of duty towards tbe plaintiff’s intestate npr was there any such negligence as would entitle tbe plaintiff tu judgment.
*300In Butner v. Brown, 182 N. C., 692, at last term, this Court sustained a nonsuit where a boy 11 years of age was injured by the operation of an unguarded cogwheel in the defendant’s mill, though the uncontra-dicted evidence was that the boy, and others of like age, had been permitted, without objection, for years to enter the mill 'at will, and that there was no notice or warning given that they should not do so, and the boy lost his arm because the defendant had not guarded the dangerous machinery, which, by the consent of the defendant’s operator and its own custom, he and other boys had been permitted, without objection, to approach by visiting the mill at all times. Yet there a nonsuit was sustained, but in this case there was no defect in the machinery or car, and the intestate was not hurt thereby.
This case is one of wide and far-reaching importance. The court erred in allowing admission of testimony about a custom which had been declared (if it existed) by the city ordinance to be unlawful, and in refusing to give the defendant’s prayers for instructions, and in the charge as given, and especially in refusing to allow the defendant’s motion for nonsuit upon the ground that upon the evidence the intestate, because under 12 years of age, “could not be guilty of contributory negligence.”
On a careful perusal of the record, it is a reasonable inference that the question really tried by the jury was solely whether the defendant ice company or the street car company was proximately liable for the collision, leaving out the real issue whether the ice company, in either event, was liable to the plaintiff’s intestate, who was a trespasser, and, besides, was guilty, upon the plaintiff’s own showing, of contributory negligence in violating the town ordinance and the prohibition of the defendant company.