On Motion for Rehearing.
The dissent argues that there is no sound or justifiable reason for applying a different standard with regard to primary and contributory negligence. It is also urged that Code § 105-1806 is negative in character and merely sets the "ceiling” age at which the defense of infancy cannot be used. The Code section in question positively provides that those over the age of discretion and accountability for criminal offenses may not use infancy as a defense. However, as to those under such age, the Code section, by its very nature, just as unequivocally provides that infancy is a defense. In Shirey v. Woods, 118 Ga. App. 851, 855 (165 SE2d 891), this court recognized such fact in a case involving negligence of a child under 10 years of age. The opinion pointed out as to such child "under Code § 105-1806, if he were defending a claim, he could claim-immunity for his conduct as a defendant who had not 'arrived at those years of discretion and accountability prescribed by this Code for criminal offenses.’”
*862As to the reason for applying a different standard with regard to an infant plaintiff and an infant defendant, the infant is protected from a suit by Code § 105-1806. However, if he chooses to sue, he in effect gives up or waives such protection and subjects himself to the rule as laid down in the cases under Code § 105-204.
We find no basis for the dissent’s proposition that the legislature was aware of the case law regarding contributory negligence of a child between the ages of 7 and 10 at the time it enacted Code § 105-1806. This Code section was adopted in the original Code of 1863. Our research reveals an early case dealing with an infant plaintiff’s duty to exercise care in Vickers v. Atlanta & W. P. R. Co., 64 Ga. 306 (written in 1879). However, the foundation of the rule with regard to the negligence of an infant plaintiff is found in Western & A. R. Co. v. Young, 81 Ga. 397 (7 SE 912) (written in 1888), and Western & A. R. Co. v. Young, 83 Ga. 512 (10 SE 197) (written in 1889). These cases were subsequently codified in the Code of 1895, now Code § 105-204. It is difficult to suppose that the legislature had any intent at all as to a rule which would not find concrete expression until many years after the adoption of the law in question. Legislative intent is not here involved for the further reason that such rule of construction has no application where the language of a statute is, as here, clear and unambiguous. See New Amsterdam Cas. Co. v. McFarley, 191 Ga. 334 (12 SE2d 355); Aldridge v. Federal Land Bank of Columbia, 203 Ga. 285 (46 SE2d 578); Kendrick v. Kendrick, 218 Ga. 284 (127 SE2d 379).
It has been argued in the dissent that the language in Code § 105-1806 referring to "this Code” referred to the 1933 Code only. In each of our Codes beginning with 1863 the equivalent of Code § 105-1806 has contained the language "this Code” referring to the equivalent of Code § 26-302. If the codifiers had not intended that the limitation should vary with the varying age of culpability which might thereafter be fixed, they would simply have said that infancy would not be permitted as a defense to those who were more than 10 years old. But they did not. They consciously tied the age to the provision in the Criminal Code, knowing that a change might be made by some future General Assembly. In 1969 *863the new Criminal Code was adopted as Code Ch. 26 in substitution of the former Code-Ch. 26. Ga. L. 1969, pp. 857, 858. This had the effect of amending Code § 26-302 by striking it and substituting Code §26-701. Thus, the legislature, having regard for the status of the law as it existed prior to its most recent enactment, amended the age of infancy as a defense. See Spence v. Rowell, 213 Ga. 145, 152 (97 SE2d 350); Nelson v. Roberts, 217 Ga. 613, 614 (124 SE2d 85); Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700 (10 SE2d 375); Jacobs v. State, 200 Ga. 440, 444 (37 SE2d 187); Buice v. Dixon, 223 Ga. 645, 646 (157 SE2d 481).
Judgment adhered to.