dissenting.
The majority in its opinion reaffirms the general rule that the issue of whether a child may be held guilty of contributory negligence is normally a question for the jury to determine. In addition, it recognizes and applies a narrow exception to such a rule, namely, that the issue of contributory negligence on the part of a minor constitutes a question of law when the facts clearly demonstrate that the minor had knowledge and appreciation of the danger to be incurred. I disagree with the majority’s application and recognition of such an exception.
In Armer v. Omaha and Council Bluffs St. Ry. Co., 151 Neb. 431, 37 N.W.2d 607 (1949), this court reviewed an incident where an 11-year-old girl had been hit by a bus while she was riding her bicycle. This court held that whether the girl was neg*751ligent was an issue to be determined by a jury. According to the court,
[t]he conduct of appellant as shown by this record should not, her age considered, conclusively bar her right of recovery .... She doubtless knew that there was danger of injury in traveling in the street and in turning to the left to cross the street. Nearly any child of her age would answer, if asked, that it knew if it fell in the river it might be drowned; if it fell in the fire it would be burned; or if it got in the way of a streetcar or a motor vehicle it would be injured and possibly killed; but mere childish knowledge of everyday things does not necessarily establish that they appreciate or understand the necessity for keeping away from, or not doing these things. . . . The infant is favored by the law not so much on his lack of knowledge as because of indiscretion, imprudence, lack of judgment, and impulsiveness.
Id. at 437-38, 37 N.W.2d at 610-11.
While it may be true in the instant case that the minor was warned about the dangers of playing around trains and reprimanded for playing in trainyards, it is not clear whether she fully appreciated the necessity of keeping away from trains. As in Armer, there exists a dispute as to whether the minor fully understood the ramifications of playing around trains for purposes of establishing contributory negligence. Therefore, I conclude that the district court erred in declaring as a matter of law that the minor was guilty of contributory negligence.
Moreover, I disagree with the majority’s recognition of an exception to the general rule, and I find it appropriate to overrule any prior Nebraska cases adopting such an exception. It is my position that the question of whether a child was contributorily negligent is always a question for the jury.