{
  "id": 8626006,
  "name": "GEORGE BEVAN, by His Next Friend, F. C. BEVAN, v. G. E. CARTER",
  "name_abbreviation": "Bevan ex rel. Bevan v. Carter",
  "decision_date": "1936-06-15",
  "docket_number": "",
  "first_page": "291",
  "last_page": "292",
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      "cite": "210 N.C. 291"
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    "id": 9292,
    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T17:57:05.250790+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "GEORGE BEVAN, by His Next Friend, F. C. BEVAN, v. G. E. CARTER."
    ],
    "opinions": [
      {
        "text": "Stacy, C. J.\nWas it competent for the defendant to express the opinion that there was no possible way for him to avoid hitting the plaintiff? The authorities say, \u201cNo.\u201d\nIn Jeffries v. R. R., 129 N. C., 236, 39 S. E., 836, the following question, propounded to the engineer of the railroad company, was held to be objectionable: \u201cAfter you saw the child, was anything not done that could have been done to save the child?\u201d Likewise, in Phifer v. R. R., 122 N. C., 940, 29 S. E., 578, a new trial was ordered because the plaintiff was asked, \u201cWere you careful?\u201d and was allowed to answer, \u201cTes, I was careful.\u201d This was the very question the jury was impaneled to decide. Stanley v. Lbr. Co., 184 N. C., 302, 114 S. E., 385; Raynor v. R. R., 129 N. C., 195, 39 S. E., 821.\nSecond: Was it proper to submit to- the jury the contributory negligence of the plaintiff? The answer is, \u201cNo.\u201d\nIt was said in Campbell v. Laundry, 190 N. C., 649, 130 S. E., 638, \u201cA child 4 years old is incapable of negligence, primary or contributory.\u201d Furthermore, there is no plea of contributory negligence. C. S., 523. Nor would such a plea avail as against a four-year-old plaintiff. Jordan v. Asheville, 112 N. C., 743, 16 S. E., 760.\nNew trial.",
        "type": "majority",
        "author": "Stacy, C. J."
      }
    ],
    "attorneys": [
      "Ford M. Meyers for plaintiff, appellant.",
      "J. M. Daniel, Jr., and Phillips & Bower for defendant, appellee."
    ],
    "corrections": "",
    "head_matter": "GEORGE BEVAN, by His Next Friend, F. C. BEVAN, v. G. E. CARTER.\n(Filed 15 June, 1936.)\n1. Evidence K b \u2014 Opinion testimony in this case held incompetent as invading the province ol the jury.\nThis was an action to recover for injuries sustained when plaintiff was struck by a car driven by defendant. Defendant contended that the accident was unavoidable, and was permitted to testify that it was not possible for him to have avoided hitting plaintiff. Held: The testimony invaded the province of the jury, and its admission constitutes reversible error.\n2. Negligence D a\u2014\nIt is necessary that defendant plead contributory negligence in order to be entitled to the submission of the issue to the jury. C. S., 523.\n3. Negligence C b\u2014\nA four-year-old child is incapable of negligence, primary or contributory.\nAppeal by plaintiff from Pless, J., at September Term, 1935, of DAVIDSON.\nCivil action to recover damages for alleged negligent injury to plaintiff, a four-year-old child, who sustained a broken leg when hit by a Ford sedan automobile owned and operated by the defendant.\nTbe evidence is in conflict as to whether plaintiff\u2019s injury was the result of defendant\u2019s negligence or unavoidable accident.\nThe defendant, as a witness in his own behalf, was permitted to testify as follows: \u201cQ. State to the jury whether there was any possible way for you to avoid hitting the child.\u201d (Objection; overruled; exception.) \u201cA. None that I could see.\u201d\nThe following instruction to the jury constitutes one of plaintiff\u2019s exceptive assignments of error:\n\u201cThe question of contributory negligence of the plaintiff is usually submitted to the jury in a separate issue. In cases of this kind, however, due to the age of this young boy, the court is submitting it all to you in one issue, but you will consider that question, the question of the alleged contributory negligence of the young boy in determining the answer to the first issue.\u201d Exception.\nIn substance, this instruction was repeated several times during the charge.\nThe jury answered the issue of negligence in favor of the defendant.\nFrom judgment on the verdict plaintiff appeals, assigning errors.\nFord M. Meyers for plaintiff, appellant.\nJ. M. Daniel, Jr., and Phillips & Bower for defendant, appellee."
  },
  "file_name": "0291-01",
  "first_page_order": 357,
  "last_page_order": 358
}