Adams Ex Rel. Adams v. State Board of Education

Johnson, J. The Tort Claims Act provides that “the findings of fact of the Commission shall be conclusive if there is any competent evidence to support them. . . .” G.S. 143-293; Bradshaw v. Board of Education, 244 N.C. 393, 93 S.E. 2d 434. Necessarily, then, decision turns on whether there is any competent evidence to support the Industrial Commission’s finding and conclusion that the plaintiff was contributorily negligent in bar of recovery. The question thus posed requires a recurrence to these fundamental principles of law: Contributory negligence is such an act or omission on the part of the plaintiff amounting to a want of ordinary care concurring and cooperating with some negligent act or omission on the part of the defendant as makes the act or omission of the plaintiff a proximate cause or occasion of the injury complained of. Moore v. Iron Works, 183 N.C. 438, 111 S.E. 776; Elder v. R. R., 194 N.C. 617, 140 S.E. 298; Wall v. Asheville, 219 N.C. 163, 13 S.E. 2d 260; Holderfield v. Trucking Co., 232 N.C. 623, 61 S.E. 2d 904. Proximate cause is a cause which in natural and continuous sequence, unbroken by any new and independent cause, produced the plaintiff’s injuries, and without which the injuries would not have occurred, and from which a person of ordinary prudence could have reasonably foreseen that such a result, or some similar injurious result, was probable under the facts as they existed. Hall v. Coble Dairies, 234 N.C. 206, bot. p. 214, 67 S.E. 2d 63, 68; McIntyre v. Elevator Co., 230 N.C. 539, 54 S. E. 2d 45; Ellis v. Defining Co., 214 N.C. 388, 199 S.E. 403. It is essential that in order to establish contributory negligence, the defendant must show negligence on the part of the plaintiff as a proximate cause of the injury. Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885; Construction Co. v. R. R., 184 N.C. 179, 113 S.E. 672; Construction Co. v. R. R., 185 N.C. 43, 116 S.E. 3; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488; Stephenson v Leonard, 208 N.C. 451, 181 S.E. 261, There fore, the negligence of the plaintiff and its proximate cause must concur and be proved by the defendant, and a failure to establish proximate cause, although negligence be proved, is fatal to the plea. Brewster v. Elizabeth City, supra. The rule obtains in this jurisdiction that in determining whether a child is contributorily negligent in any given situation a prima facie presumption exists that an infant between the ages of seven and fourteen is incapable of contributory negligence, but the presumption may *512 be overcome. The test in determining whether the child is contribu-torily negligent is whether it acted as a child of its age, capacity, discretion, knowledge and experience would ordinarily have acted under similar circumstances. Caudle v. R. R., 202 N.C. 404, 163 S.E. 122. See also Walston v. Greene, 247 N.C. 693, 102 S.E. 124; Annotations: 107 A. L. R. 4; 174 A. L. R. 1080. In Rolin v. Tobacco Co., 141 N.C. 300, 314, 53 S.E. 891, the Court said in speaking to the question of contributory negligence respecting an eleven year old boy who was injured while at work: “Within certain ages, courts hold children incapable of contributory negligence. We do not find any case, nor do we think it sound doctrine, to say that a child of twelve years comes within that class. Adopting the standard of the law in respect to criminal liability, we think that a child under twelve years of age is presumed to be incapable of so understanding and appreciating danger from the negligent act, or conditions produced by others, as to make him guilty of contributory negligence. Mr. Labatt says: ‘The essential and controlling conception by which a minor’s right of action is determined with reference to the existence or absence of contributing fault, is the measure of his responsibility. If he has not the ability to foresee and avoid the danger to which he may be exposed, negligence will not be imputed to him if he unwittingly exposes himself to danger. For the exercise of such measure of capacity and discretion as he possesses, he is responsible.’ . . . ‘Between seven and fourteen a child is prima facie incapable of exercising judgment and discretion, but evidence may be received |to show capacity.’ T. C. & C. Co. v. Enslen, 129 Ala., 336, 346. . . . “In' regard to the alleged contributory negligence of the plaintiff, he should have instructed the jury in accordance with the principles announced by the authorities herein cited. The jury could take into consideration the age, intelligence and knowledge of the plaintiff in regard to the machine and his capacity to know and appreciate the danger.” In Hollingsworth v. Burns, 210 N.C. 40, 185 S.E. 476, a boy of twelve skating in the street was hit by a car which admittedly was being operated in a negligent manner. Devin, J. (later C. J.), speaking for the Court, said: “Here the plaintiff was just twelve years of age and was engaged with other boys in a childish game, on roller skates, on or near a connecting street which was ordinarily not much used. . . . “The courts recognize that the love of play is instinctive in childhood, and'that children may be expected to act as children and upon childish impulses. One who possessed profound knowledge of the characteristics of human conduct said, long ago: ‘When I was a *513 child, I spake as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.’ I Cor. 13-11. The law wisely takes into consideration the fact that a small boy will have only the understanding and the thought of a child, not that of a man.” The Commission’s conclusory-finding that the plaintiff is barred of recovery by his own negligence is predicated on these inferences deduced from the plaintiff’s evidence: “That the infant plaintiff, George Lindsay Adams, was negligent in failing to keep a proper lookout so he could observe said lawn mower after he had been warned of its 'presence by the noise of its motor, and in failing to reduce the speed at which he was running at the time and under the circumstances herein described, and that such negligence was one of -the proximate causes of said accident and the resulting damages suffered by him.” (Italics added.) It thus appears that the two elements of negligence found against the plaintiff, namely, failure to keep a proper lookout and failure to slow down, are predicated on the finding that the plaintiff failed to take timely heed of the noise made by the motor. In so limiting the elements of negligence found against the plaintiff, the Commission appears to have understood and made allowance for these basic features of the game of chase: that the chief objective of the person being chased is to avoid being caught or tagged by his pursuer, and that much of the strategy of the one pursued, especially when about to be caught, is to elude his pursuer by dodging, shifting, or sidestepping ; and that the game requires the person chased to do much of his top speed running while looking back, with eyes on his pursuer, so as to be prepared to dodge and shift when about to be tagged. Therefore, since the Commission has limited the elements of negligence found against the plaintiff to failure to keep a proper lookout and reduce speed after being warned of the presence of the mower by the noise of its motor, the pivotal question for decision is: May negligence as a proximate cause of the plaintiff’s injury be inferred from the plaintiff's failure to give earlier heed to the sound of the motor by turning sooner to avoid contact with the mower? The only finding of the Commission as to how much noise the motor made is as follows: It “made the noise of a small motorcycle.” This finding is based on the testimony of witness Evans, who was operating the mower. He testified as follows: “The motor makes much noise. It is a two-cylinder motor and makes almost as much fuss as one of those small motorcycles.” No one testified as to how far the motor could be heard. William Paskhal testified: “I was behind them *514 (the plaintiff and Jimmy Hamilton) when George (the plaintiff) tried to cut around the lawn mower. I could hear the lawn mower but I was not paying attention to it. I reckon the lawn mower was three or four feet from George when George cut to his right. That is the first time I saw the lawn mower.” The plaintiff testified as follows on cross-examination: “I really don’t know why I didn’t hear the lawn mower before I got that close to it. I was .running, with two other boys and I didn’t see the lawn mower until I was about three feet away. I don’t know why I was that close to the lawn mower before I saw it. I heard the lawn mower but I just didn’t see it.” It thus- appears that the evidence, as well as the conclusory-finding of the Commission, is indefinite and speculative in respect to how much noise the motor made and how far it could be heard under existing conditions. In further considering the question whether contributory negligence may be inferred from the plaintiff’s .failure to attempt to turn sooner from his course, in heed of the noise of the motor, these additional factors disclosed by the evidence appear to be relevant: 1. The plaintiff and his companions, William Paskhal and Jimmy Hamilton, were at play on the school playground during a regular play period, when the lawn mower was not supposed to be in operation. It was the practice of the school janitor to mow the grass on the playground only when the children were attending classes, and not to mow while they were at play. The janitor knew that some of the children came to school early, as did the plaintiff and his companions on this particular morning, and engaged in play before the first bell rang in the mornings. On the morning in question, because the weather had been hot and dry and the grass was tough, the janitor, contrary to his usual practice, said he took the machine out on the playground to mow while the dew was on the grass. 2. When the boys came out of the school building to begin their game of chase, they started near the circular driveway back of the school building. The playground lay out in front of them. The ground sloped downhill to a drain ditch. Beyond the ditch the ground sloped up and over a mound or terrace. The janitor was over behind the terrace operating the power mower. The plaintiff took the lead. He was followed first by William Paskhal and then by Jimmy Hamilton. When they crossed the ditch and approached the terrace, the plaintiff was still in front, closely followed by William, but all three were close together. The uncontradicted testimony of all the boys is that they did not see the power mower until after they passed over the terrace. The Commission found on the testimony of witness Evans that he was operating the mower about 40 or 50 feet beyond the terrace. He *515 was sitting on the trailer. Jimmy Hamilton said as he approached the terrace he could see only the janitor’s head “over the mound or hill.” The plaintiff said that after crossing the ditch “the only thing he saw was the janitor.” Operator Evans said: “The first time that I saw George (the plaintiff) he was falling under the machine. ... I didn’t see the other boys until they all piled up. ... If I had been looking in their direction I probably would have seen them; but I was looking in the direction to which I had started. I was looking straight ahead where I was mowing.” 3. The evidence tends to show that the chase had reached high pitch when the boys approached and went over the terrace near where the mower was in operation. It is inferable that the plaintiff was about to be caught. All three boys were within three or four steps of each other. Their natural excitement at this stage of the game made them less heedful of outside noises, and furnishes plausible explanation why the plaintiff was close upon the mower before he attempted to turn and avoid colliding with it. 4. The plaintiff did not run into or trip over the mower. On the contrary, he slipped on the wet grass and skidded into the revolving blade. All the evidence tends to show that after crossing the terrace, the plaintiff approached the mower at an angle from the side and rear. Suddenly finding himself close to the machine, he attempted to shift around from the side toward the front, and in doing so his foot slipped on the grass and he slid into the front side of the mower, coming into contact with the revolving blade. The plaintiff testified in part: “The first time J saw the lawn mower we were close to it. I glanced over there and saw it, and I whirled around. ... I had seen the lawn mower before, but I don’t know what condition it was in. I turned to my right after I first-saw the lawn mower about three feet away from me to get back up the hill and out of its way. The grass was wet; my foot slipped and the lawn mower was on top of my foot. The grass there was about two and a half feet high.” (Italics added). It is noted that the Commission found that the grass “was high but did not conceal the mower or the operator thereof.” Further explanation by the plaintiff on cross-examination: “I saw it and then turned to my right. When I turned to my right, my foot slid out from under me. I approached the lawn mower from the side. . . . After I saw it, I turned to my right. The grass was slick and I slid. That was when my ankle got caught in the blade.” Jimmy Hamilton testified in part: “I was behind George, and George fell over and we fell on top of him. ... We sort of came together at right angles, I guess. . . .We fell over George and not on the lawn mower.” *516 This line of testimony, showing that the plaintiff slid into the machine after slipping in the tall wet grass, tends to minimize further the probative force of the evidence relied on by the defendant to show negligence on the part of the plaintiff. It also brings into bold relief, as bearing further on the question of proximate cause, the element of negligence on the part of the defendant’s janitor in operating the mower with the revolving blade completely exposed. He said he was operating the machine for the first or second time with the whirlwind rotary blade exposed, without the protective metal guard that fitted over the top and front of the blade. He said the safety guard which was left off “keeps the machine from throwing things out and it keeps things from coming into contact with the blade from the outside(Italics added.) The plaintiff and his playmates had no notice or knowledge of the dangerous, exposed condition in which the lawn mower was being operated. Moreover, it is inferable that if the plaintiff’s pivot foot had not slipped on the wet grass, he would have made his turn in safety. This being so, can it be said that in failing to heed the noise of the motor and turn sooner, the plaintiff, eleven year old boy, should have reasonably foreseen injurious results? We think not. Under all the attending circumstances, we conclude that negligence as a proximate cause of the plaintiff’s injury may not be predicated upon or inferred from his conduct as disclosed by the evidence in this case. In this view of the case it is immaterial that the judgment entered below indicates that the court overruled the Commission's findings, (1) that the high grass failed to obscure the mower from the vision of the approaching plaintiff, and (2) that the plaintiff was an average boy having normal capacity and experience of a child of his age. Conceding, without deciding, that these findings are supported by the evidence, even so, the opinion prevails that the evidence here is insufficient to support the finding and conclusion that the plaintiff by his own negligence is barred of recovery. The court below correctly so held. The judgment entered is free of prejudicial error and will be upheld. Affirmed.