Weeks Ex Rel. Weeks v. Barnard , 265 N.C. 339 ( 1965 )

143 S.E.2d 809 (1965) 265 N.C. 339

Wilma Anne WEEKS, by her Next Friend James E. Weeks
v.
Martin Raymond BARNARD.

No. 36.

Supreme Court of North Carolina.

September 22, 1965.

Russell E. Twiford, Merrill Evans, Jr., Aydlett & White, Elizabeth City, for plaintiff appellant.

LeRoy, Wells & Shaw, Elizabeth City, for defendant appellee.

PER CURIAM.

Between the ages of 7 and 14, a minor is presumed to be incapable of contributory negligence. Ennis v. Dupree, 258 N.C. 141, 128 S.E.2d 231; Phillips v. North Carolina R. R., 257 N.C. 239, 125 S.E.2d 603. This presumption, however, may be overcome by evidence that the child did not use the care which a child of its age, capacity, discretion, knowledge, and experience would ordinarily have exercised under the same or similar circumstances. Walston v. Greene, 247 N.C. 693, 102 S.E.2d 124; Caudle v. Seaboard Air Line R. R., 202 N.C. 404, 163 S.E. 122. A child "must exercise care and prudence equal to his capacity." Tart v. Southern R. R., 202 N.C. 52, 55, 161 S.E. 720, 721; see also Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Annot., 107 A.L.R. 4, 40, 94. If it fails to exercise such care and the failure is one of the proximate causes of the injuries in suit, the child cannot recover. Morris v. Sprott, 207 N.C. 358, 177 S.E. 13; Tart v. Southern R. R., supra; Foard v. Tidewater Power Co., 170 N.C. 48, 86 S.E. 804, and cases therein cited.

The trial judge fully explained these and all other applicable principles of law to the jury. After carefully considering his charge as a whole we find no reasonable cause to believe that the jury was misinformed or misled by it. A new trial is not warranted.

No error.