dissenting.
The court erred in giving Instruction “Y.”
That instruction has already been copied. It is true that the trial court in its opinion said that when given it was not objected to. This, however, is bill of exception No. 2:
“Be it remembered that after the jury was sworn to try the issues in this case, and after completion of the testimony as embodied in Bill of Exception No. 1, the court gave instructions Nos. 1, 2, 3, 5, 6 and 7 at the request of the plaintiff and Instructions No. X of its own motion, and Instructions Nos. A, B, C, D, O, E, and Y, for the defendant, and amended plaintiff’s instruction No. 1, deleting the words “to give proper and timely warning of the approach of the said automobile,” and refused plaintiff’s instruction No. 4, to which action of the court in refusing instruction No. 4 plaintiff excepted, and to the granting at the request of defendant of Instruction No. Y, known as delimma instruction the plaintiff objected, and excepted, and now prays that his bill of exceptions Nos. 1, 2, 3 and 4 may be signed, sealed and made a part of the record in this case. It appearing in writing that the attorney for the defendant has had reasonable notice of the time and place of presenting these bills of exceptions to the court.
“(Signed) Frederick W. Coleman, Judge.”
*55It is true that this bill of exception does not set out just what the objection was, but it is equally true that the presiding judge understood its character. He certifies that it is what is commonly known as the dilemma instruction. If he did so understand he was not taken by surprise, he was not misled. An objection which apprises the trial judge of its nature is all that Rule XXII demands. One might as well be required to elaborate an objection to an instruction which told a jury that the accused must be proven guilty beyond a reasonable doubt.
This child when peril was discovered and when the car was just upon her acted with indecision, as might have been expected, and it may be conceded a dilemma then presented itself. But the jury was left free to find that the dilemma which then confronted the defendant was brought about through no fault of his. A verdict so found would have been contrary to the evidence. Holland was himself guilty of primary negligence.
Little Gladys was running diagonally across the road that she might reach a school bus on the far side. Certainly for thirty-three feet from the roadway itself she was in plain view of the oncoming car. The day was clear, the road was straight, and there was nothing to obstruct the driver’s view. He did not see her until it was too late. This is his picturesque account of the situation:
“Q. What was the first you knew of anything out of the ordinary prior to this accident?
“A. The first thing was this little girl kinder flashed on the road, just like you might see a rat.”
He said that he was traveling “around forty, forty-two or forty-three miles,” and that he was looking straight ahead at an oncoming truck at the time of the accident seventy-five or one hundred yards distant. The child must, therefore, have been in view when this truck was one hundred and fifty or two hundred yards away. If he did not see her he ought to have seen her. The measure of duty is in each instance the same. One cannot escape liability by failing to observe what he should have seen. *56Plainly a driver is not relieved from observing all roadside conditions, particularly where children are concerned, merely because another car this far away is coming. Moreover, this was the school children’s hour; Holland should have seen that they were collecting along the roadside.
It is said, however, that even if this be true and that if there is error here it is harmless error because the child was herself guilty of contributory negligence, but before that rule' can in such circumstances be invoked contributoi’y negligence must appear as a matter of law.
She was eight years old. The rebuttable presumption is that such a child was incapable of negligence. Morris v. Peyton, 148 Va. 812,139 S. E. 500. Whether or not this presumption has been overcome is pre-eminently a jury question. Chesapeake & Ohio Railway Co. v. Allen, 137 Va. 516, 522,120 S. E. 157; Filer v. McNair, 158 Va. 88,163 S. E. 335.
Under Instruction “Y” the jury might have found that there was no primary negligence and no contributory negligence; it might have found that there was both primary negligence and contributory negligence; and it might have found that there was no primary negligence but contributory negligence. In any of these cases there would have been a general verdict for the defendant. Just what theory ithe jury did rest it upon we do not and can not know.
Putting aside the statute as to imperative instructions, can it be said that it would have been harmless error for the court to have told the jury that the defendant as a matter of law was not guilty of primary negligence? Could that error on a general verdict have been made harmless by the fact that it on a proper submission might have found that the presumption of incapacity had been over-borne and that contributory negligence had been made to appear? I think not. An instruction permitting an erroneous finding may be not less hurtful than one which requires it.
*57In conclusion it may be said that Instruction “Y” contains a fair statement of an abstract proposition, but it is not applicable to the facts in this case. We are dealing not with a grown woman, in full possession of her faculties, but with a child of tender years. One who sees or is charged with seeing the approach of an adult in such manner to suggest a purpose to cross a highway down which a. driver is coming, has the right to assume that she will exercise ordinary care in self protection. The heedlessness of children makes it unsafe for one to indulge in such a presumption under such circumstances, where they are concerned.
Holland was in part responsible for the emergency which confronted him. For the foregoing reasons, I am constrained to dissent.
Campbell, C. J., concurs in dissent.