(dissenting). In directing a verdict on the ground that the child was guilty of contributory negligence as a matter of law, the trial court stated:
“Where you have a child of sufficient age, ability and understanding so that the child could reasonably have been expected to exercise the degree of care necessary under the circumstances that are shown and the consequences that would follow from the conduct in which she engaged, it becomes purely a question of whether or not the child was negligent.
“Now, we have a child here somewhat over 9 years of age, roughly 9 years and 5 months, I Relieve. This child was, let me say, somewhat above normal in intelligence. At the time she was injured, she was due for a double promotion in school, which meant that she was taking 2 grades, as I understand it, at once, and was going to be advanced more rapidly than she would normally be advanced year by year under the school curriculum.
“She was thoroughly informed, not only by her parents, but by other people, including the people at school, as to the danger of traffic conditions or, rather, the danger engendered by traffic conditions -of the community in which she lived. She was fully •aware of the situation that would be presented-*326should she step out from behind a parked car in the middle of a block without looking both ways, • and she was fully aware of the danger that attended, as she said, moving her feet before she moved her eyes.
“If this child had looked to the left before she took the step, she would have seen the car. It is my opinion that the trouble here, the circumstances which give rise to the accident, was the failure of the child to look both ways, as they say. She looked to the right, but she didn’t look to the left. Before she got an opportunity to look to the left, she took the step that put her in front of the car, and as a result of that, she was injured.
! “I am basing my finding on that as being the focal point of this suit, the one thing that happened in the case that caused the accident, and without which, there would have been and could have been no accident, because had she looked, she would have seen the car that was right there and was about to strike her.
! “Now, I am, therefore, holding her guilty of contributory negligence as a matter of law.
“The plaintiff feels that I should not direct this verdict, that I should leave it to the jury to determine, on account of the child’s age, her mental attainment, her capacity, and her knowledge of the affair* with which she was engaged, and to let you determine whether or not, under the circumstances, she did what a reasonable person or a reasonably prudent child of that age would do.
“I could easily do that if it were not for all the proofs we have here to establish that she did have the intelligence that she was required to have for her own protection, under the circumstances, and she failed to do the things that she, herself, knew she could do to provide for her own safety.
“If I didn’t announce that rule, I would practically be saying that contributory negligence should be left to a jury on a general rule basis, that the contributory negligence of infants is always a jury *327question, and that is not the law in this State. It is only a jury question where there is some question as to the capacity and ability and intelligence of the child, and we do not have that situation here in this case.
“She had sufficient intellig*ence to appreciate the danger of running out into the highway, the road, or the street without first stopping and looking for oncoming cars. There was no traffic interfering with her vision, and it was a bright clear day. It is apparent that there is no question of fact to be decided by this jury. The question becomes one' of law, and I am treating it as such.” ;
I agree with the trial court and disagree with my Brother, and, therefore, write for affirmance.
The judgment should be affirmed. Costs to appellee.
Dethmers, C. J., and Carr, J., concurred with Kelly, J.