Cedar Creek Store Co. v. Stedham

de GRAFFENRIED, J.

The evidence in this case shows that Benton Steadham, when he was injured by the automobile, was between 10 and 12 years of age. Between the ages of 7 and 14 children are presumed to be wanting in that care, judgment, discretion, and sensitiveness to danger which belong- to the average child who is 14 years of age, and there is a rebuttable legal presumption that children between the ages of 7 and 14 years are incapable of committing- what in law amounts to contributory negligence. Every well-balanced child of 8, 9, or Í0, or 11 years of age knows that fire will burn, and that if he falls into the fire, or if his clothing-catches on fire, he will not only be burned, but he also probably knows that Ms life will thereby be endangered. Such a child may not, however—and he is rebuttably presumed by the law not to—possess that maturity of discretion which dictates those precautions against the dangers of fire that are conclusively presumed by the law to belong to normal children who are 14 years of age. A child above 7 and under 14 years of age may know that, if he is struck by an automobile, he will probably be killed or suffer great bodily injury. He may know that if he remains out of public thoroughfares and other places in which automobiles are wont to go, he will be in no danger from automobiles. He may, however, not possess that maturity of discretion Avhich belongs to adults of ordinary prudence (and which normal children of 14 years of age and above that age are conslusively presumed by law to possess), and for that reason may heedlessly play in the highways and may heedlessly go across them Avithout exercising such ordinary prudence. If such a child, a child between 7 and 14 years of age and not possessing that discretion and maturity of judgment which the law conclusively presumes a normal child of 14 years of age to possess, is injured through the actionable negligence of another, such a child is entitled to recover, although his own carelessness proximately contributed to his injury. The above seems to be the effect of our decisions.—Birmingham Ry., L. & P. Co. v. Landrum, 153 Ala. 192, 45 South. 198, 127 Am. St. Rep. 25.

Under pleas N and O to which the plaintiff’s demurrer Avas overruled, the defendant was able to place before the jury, in as favorable a way as it possibly could, the defense of contributory negligence. This being true, we deem it unnecessary to discuss the action of the court in sustaining the plaintiff’s demurrer to certain other pleas setting up that defense.

(2) The above renders it unnecessary for us to take up the other matters discussed by counsel in their briefs with reference to the pleadings. Under the plea of the general issue the burden was upon the plaintiff to show that his injury was due to the actionable negligence of the defendant’s chauffeur, and with this plea in, along with the pleas of contributory negligence, the issues were as broad as the defendant had the right to ask them to be.

(3) There was no error in that ruling of the court Avhereby nonexperts were allowed to testify that, in their opinion, the automobile, at the time of the injury, was traveling at a given rate of speed. This has heretofore been held and the reasons therefor given in the following cases: A. G. S. R. R. Co. v. Hall, 105 Ala. 599, 17 South. 176; Highland Ave. & Belt Railroad Co. v. Sampson, 112 Ala. 425, 20 South. 566. It would be useless for us to here repeat the reasons for this holding, as the reasons therefor are fully set forth in the cases above cited.

(4) The question made the subjects of the eighteenth and nineteenth assignments of error was answered before there Avas any objection to the question. The exception, therefore, came too late. The answer was responsive to the question, and the question fully disclosed the character of the testimony which the plaintiff thereby sought to introduce. The tidal court cannot be put in error, for the matters complained of in these tivo asignments of error.—Central of Ga. Ry. Co. v. Charles B. Teasley, infra, 65 South. 981.

(5) One of the witnesses testified that when the boy was struck the automobile was traveling “very fast,” “just as fast as it could go.” The boy was injured in the daytime at a railroad station when the train was approaching. On the question of wantonness vel non—• and when this testimony was introduced, there was a, count in the complaint charging wantonness—we do not think that the court erred in allowing the plaintiff to show that the automobile was, at the time mentioned and at the rate of speed mentioned, run near a number of children.—Grand Trunk Ry. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485; Birmingham Railway, L. & P. Co. v. Williams, 158 Ala. 381, 48 South. 93; B. R., L. & P. Co. v. Murphy, 2 Ala. App. 588, 56 South. 817.

(6)- There are numerous assignments of error which, we have not discussed. Many of them have really been disposed of by what Ave have above said, and those not discussed are without merit.

We find no error in the record, and the judgment of the court below is affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Sayre, JJ., concur.