Hoggard v. Atlantic Coast Line Railroad

Clarkson, J. Tbe only, question presented on tbe record was whether tbe court below, under tbe facts, ought to have nonsuited tbe plaintiff. We think not. In building the bridge tbe banisters were constructed with a plank 10 inches wide at tbe bottom on tbe floor of tbe bridge, then a space of 23 inches, and another 10-inch plank at tbe top, making a banister between 3% and 4 feet high, with an open space between tbe top and bottom railings 23 inches wide. This open space extended from end to end of tbe bridge on both sides, being broken only by tbe posts, which were spaced 8 feet apart. Tbe bridge was at tbe intersection of tbe street on which it was built, and Main Street, and was much traveled. Plaintiff’s intestate was a boy 9 years old. On tbe day in question be was running, apparently in play with some other children who were following him. He started across tbe bridge, and when about tbe top, and about two feet from tbe railing, looked back toward bis companions, *259 stumped bis toe and pitched headlong through the two feet space in the railings to the railroad track below. He attempted to catch one of the posts, but was too far away and missed it. The floor of the bridge is 23 feet above the track, and the boy’s head and shoulders struck the rail of the track, breaking his shoulder and fracturing his skull. He died the next day. In the present action it is conceded that it was the duty of the defendant to build the bridge over its railroad along the street. The principle governing the necessity of guard rails and barriers is set forth in Vol. 9 C. J., p. 477, sec. 79, in part, as follows: “Where guard rails to a bridge or its approaches are clearly necessary for the safety of travelers, a failure to erect or properly to maintain them is negligence for which the municipality or the company charged with the duty to maintain the bridge is liable to a party who in the observance of due care is injured by reason of such neglect, and this it seems is so, though there is no statutory requirement that guard rails should be placed on the bridge.” It would be negligence per se for defendant to fail to provide railings or barriers on both sides of a bridge of the kind described in this action. Stout v. Turnpike Co., 153 N. C., p. 513; 4 R. C. L., p. 217. The guard rails were constructed with an open space of twenty-three inches. The principle applicable: did defendant use such care as a reasonably prudent man would exercise under the same or similar circumstances? Was the failure the proximate cause of the injury? Morris v. Mills (S. C.), 113 S. E., 632; Tannian v. Amesbury, 219 Mass., p. 310. In Campbell v. Laundry, 190 N. C., at p. 654, it is said: “Negligence was defined according to Baron Alderson’s formula: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.’ Pollock on Torts, 442.” A highway or street is open for all — both adults and children. “The use thereof by children for purposes of play and sport is not as a matter of law an illegitimate use of a highway, Not to be anticipated by the authorities whose duty it is to keep highways in a reasonable safe condition.’ ” Morris case, supra, p. 634. “Children, wherever they go, must be expected to act upon childish instincts and impulses, and others who are chargeable with a duty of care and caution toward them must calculate upon this, and take precautions accordingly.” Chief Justice Cooley in Power v. Harlaw, 57 Mich., 107; Loughlin v. Penn. R. R. Co., 240 Pa. St. Rep., at p. 179. In the present case the boy was 9 years of age. The question of contributory negligence is one for the jury. While a child of tender years *260 is not beld to tbe same degree of care as one of mature years in avoiding an injury arising from tbe negligent act of another, it is ordinarily a question of fact for tbe jury to determine, in an action to recover damages therefor, whether under the circumstances, and considering his age and capacity, he should have avoided the injury complained of by the exercise of ordinary care. Alexander v. Statesville, 165 N. C., 527; Fry v. Utilities Co., 183 N. C., 281. In Starling v. Cotton Mills, 168 N. C., 229 and 171 N. C., 222, the child was 5 years old, and was held not to be guilty of contributory negligence. To the same effect in Comer v. Winston-Salem, 178 N. C., p. 383, the child was 28 months old. In Campbell v. Laundry, supra, the child was 4 years old, and the many cases cited therein were children under 7 years of age — it was held that contributory negligence could not be attributed to them. In Ellis v. Power Co., 193 N. C., p. 357, a young boy 9 years of age was held not guilty of contributory negligence in picking up an uninsulated electric wire near the pathway leading to and from his home. The Court, in that case, said: “It is a matter of common knowledge that this wonderful force is of untold benefit to our industrial life. Electric power is an industry-producing agency, and the hydro-electric development has been one of the greatest factors in the State’s progress, and especially its industrial expansion. Every legitimate encouragement should be given to its manufacture and distribution for use by public utility corporations, manufacturing plants, homes and elsewhere. On the other hand, the highest degree of care should be required in the manufacture and distribution of this deadly energy and in the maintenance and inspection of the instrumentalities and appliances used in transmitting this invisible and subtle power.” See cases cited in Graham v. Power Co., 189 N. C., p. 381. For the reasons given the judgment is Reversed.