#### D. V. HOGGARD, Administrator of Garland Hoggard, Deceased, v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 21 September, 1927.)

1. Negligence — Railroads—Bridges—Guard Rails — Evidence—Nonsuit— Questions for Jury.

Evidence tending to show that a railroad company maintained a bridge generally used by the public on a street of a town twenty-three feet above .its track, with a banister supported by posts eight feet apart with a ten-inch plank at the top and bottom running with the lengthway of the bridge, leaving an open space between the planks twenty-three inches wide, is sufficient to sustain a verdict against the railroad company, and to deny its motion as of nonsuit, for its negligence in providing a bridge with insufficient guards to protect those using it, with other evidence tending to show that the intestate, a lad of 9 years of age, was playing *257on the bridge with other children, stumped his toe on a nail on the bridge about two feet from the rail, and thus was precipitated through the opening between the planks upon the track below and received an injury which caused his death.

2. Same — Contributory Negligence — Children.

Held, under the evidence in this case it was a question for the jury to determine whether the plaintiff’s intestate, a nine-year-old lad, was guilty of such contributory negligence as would bar his recovery, notwithstanding the negligence of the defendant railroad in not providing a bridge twenty-three feet above its track with sufficient banisters to prevent his falling through to the track below, thus sustaining injuries that caused his death.

Appeal by plaintiff from Grady, J., at April Term, 1927, of Heet-fobd.

Eeversed.

Tbis is an action for actionable negligence by D. Y. Hoggard, administrator of Garland Hoggard, deceased, against tbe Atlantic Coast Line Eailroad Company. Tbe complaint alleged negligence in tbe construction of a bridge over defendant’s roadbed, in tbe town of Tunis, N. 0. Tbe defendant denied any negligence and set up tbe plea of contributory negligence.

Tbe bridge is described by E. W. Peele, a witness for plaintiff, as follows:

“I live at Tunis. I know tbe bridge on wbicb Garland was burt. Tbe railing on tbis bridge bas a four-foot banister, a ten-incb board at tbe bottom- and a ten-incb board at tbe top, and nothing in between— about a twenty-tbree incb space in between tbe boards and tbe railing. Tbe posts bolding tbe railing are eight feet apart. Tbe bridge is about twenty-tbree feet above tbe railroad.

“Q. Is tbe bridge used by tbe public? A. Absolutely, by anybody who wants to cross it — a good many people living either side of it use it.

“A street from Main Street leads to tbis bridge, crosses tbe railroad, and citizens on tbe west side of tbe railroad use tbis bridge to go to church, school, depot, postoffice, and stores down town. It is a public pass-way.”

Tbe plaintiff’s intestate was nine years old.

As to tbe occurrence, E. H. Gardner testified, in part:

“I live at Tunis; knew Garland Hoggard. I saw him tbe day be was injured. I was about twenty-five or thirty yards away. There were several children running and playing, tbe Hoggard boy was in tbe lead. He stumped bis toe and fell, pitching through tbe railing on tbe side of tbe bridge over tbe Atlantic Coast Line track. He was looking back when be stumped bis toe. . . . Hoggard was running across tbe *258bridge; be stumped bis toe and went between tbe boards forming tbe rail or guard on tbe bridge. I went to tbe bridge as soon as I could after be fell. . . . Garland’s bead and shoulders were on a cross-tie. . . . His shoulders bad bit tbe railroad iron. He fell back with bis neck kind of doubled back with one leg and one arm on tbe track. We picked him up and took him home. Tbe accident happened about eight o’clock in tbe evening of 8 July, 1921. That was Friday. He died tbe following Sunday. He was healthy and bright as tbe average boy and about like them as to behavior. . . . Q. You say tbe boy stumped bis toe? A. Yes, sir. I was sitting on my porch and was looking at tbe whole bunch of children. I don’t know what be stumped bis toe on — it might have been a nail. ... I know be stumped bis toe because it was torn to pieces when we got to him. Tbe boy tried to catch with bis bands to a post, but be was too far from it. When I found tbe little boy be was on tbe rail on tbe east side; this is tbe rail furthest from my bouse. Tbe other boys were right behind him, and came up to tbe bridge, but turned back when they saw him fall. When be stumped bis toe be was looking back, and as I said, fell and went through tbe rail. He was not more than two feet from tbe rail of tbe bridge when be stumped bis toe.” Tbe boy’s skull was fractured and shoulders broken.

At tbe close of plaintiff’s evidence defendant moved for judgment as in case of nonsuit. C. S., 567. Tbe court below sustained tbe motion. Plaintiff excepted, assigned error and appealed to tbe Supreme Court.

Boswell G. Bridger and Travis & Travis for plaintiff.

John E. Vann and Small, MacLean & Rodman for defendant.

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, *259stumped 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 *260is 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.