#### LESLIE CARLISLE MORRIS, by His Next Friend, S. T. MORRIS, v. D. J. SPROTT, Trading as SPROTT BROTHERS FURNITURE COMPANY.

(Filed 21 November, 1934.)

1. Negligence C b—

It is error for tbe trial court to hold as a matter of law that a seven-year-old boy cannot be guilty of contributory negligence.

2. Same—

While a child is not chargeable with the same degree of care as an adult, he is required to exercise such prudence for his own safety as one of his age may be expected to possess, which is usually a question for the jury.

*359Appeal from Harding, J., at April Term, 1934, of OababRus. New trial.

Tbe plaintiff, a lad of seven years of age, institutes tbis action by bis next friend and father, for personal injuries alleged to bave been proximately caused by tbe negligence of tbe agent of tbe defendant. It is alleged in tbe complaint tbat tbe driver of tbe defendant’s truck negligently backed said truck over tbe plaintiff and injured bim, and in tbe answer it is alleged tbat “tbe plaintiff contributed to and proximately caused bis own injury and by bis own negligent acts and conduct, in tbat be was banging underneath defendant’s truck; in tbat be failed to exercise tbat degree of care one of bis age, intelligence, and experience should bave exercised under tbe conditions and circumstances then and there apparent to bim; and tbat tbis defendant pleads such negligence on tbe part of said minor plaintiff in bar of bis right to recover.”

Tbe court submitted issues as to tbe defendant’s negligence and as to tbe measure of damage, and declined to submit an issue as to tbe contributory negligence of tbe plaintiff, tendered in proper form and in due time by tbe defendant. Tbe court intimated tbat since it appeared tbat tbe plaintiff was seven years old at tbe time of tbe alleged injury be was of tbe opinion tbat tbe plaintiff could not be guilty of contributory negligence, and for tbat reason declined to submit tbe issue tendered by tbe defendant. To tbis ruling of tbe court tbe defendant excepted. Tbe court also charged tbe jury “tbat a seven-year-old child is incapable under our law of being guilty of contributory negligence as a bar to bis right of action for damages for negligence of a defendant, if any,” and tbe defendant excepted.

Tbe issues submitted were answered in favor of tbe plaintiff, ánd judgment in accord therewith entered, and defendant appealed, assigning errors.

Hartsell & Hartsell for appellant.

H. 8. Williams, B. B. Hawfield, and H. L. Taylor for appellee.

ScheNCK, J.

We think bis Honor’s bolding, as a matter of law, tbat a child of seven years of age is incapable of being guilty of contributory negligence is in conflict with tbe decisions of tbis Court, which are to tbe effect tbat contributory negligence on tbe part of a child is to be measured by bis age and bis ability to discern and appreciate tbe circumstances of danger; and is not chargeable with tbe same degree of care as an experienced adult, but is only required to exercise such prudence as one of bis age may be expected to possess; and tbis is usually, if not' always, when tbe child is not wholly responsible, a question of fact for tbe jury. Rolin v. Tobacco Co., 141 N. C., 300; Alexander v. Statesville, 165 N. C., 527; Fry v. Utilities Co., 183 N. C., 281; Ghorley v. *360 R. R., 189 N. C., 634; Hoggard v. R. R., 194 N. C.; 256; and Tart v. R. R., 202 N. C., 52.

We are not unmindful of the case of Ashby v. R. R., 172 N. C., 98, relied upon by the plaintiff. In this case tbe plaintiff was a child of eight years of age, and the last sentence of the opinion reads: “Contributory negligence cannot be attributed to- a child of the age of the plaintiff at the time of this injury.” However, this Court has recently distinguished, if not overruled, the above-quoted utterance in the case of Brown v. R. R., 195 N. C., 699. Certainly, if the sentence quoted is read without strict reference to the facts of the case it is in conflict with the universal holding of this Court in other cases where contributory negligence has been pleaded as a bar to recovery by infants of seven years of age and upward. Chief Justice Ciarle, who wrote the opinion in Ashby v. R. R., supra, in a concurring opinion in the case of Fry v. Utilities Co., supra, quoted with approval from Foard v. Power Co., 170 N. C., 50, as follows: “We find in the books many cases where children of various ages, from seven years upward, have been denied recovery because of their own negligence.” This assertion in the Foard case, supra (which actually reads six years instead of seven years), is followed by a citation of a long list of authorities. It is not at all improbable that the apparently inadvertent statement of the late learned Chief Jusiice in Ashby’s case, supra, misled the court below.

To the end that the defendant may have submitted to the jury an issue as to the contributory negligence of the plaintiff, under a charge in consonance with this opinion, we award a

New trial.