#### A. S. CAMPBELL, Administrator of RICHARD S. SAMS, v. MODEL STEAM LAUNDRY.

(Filed 9 December, 1925.)

1. Negligence — Charter.

A child under four years of age is incapable of negligence, primary or contributory.

2. Same — Automobiles—Municipal Corporations — Traffic Ordinances.

Where the driver of an electric truck, in the performance of his duty to his employer, leaves the truck parked on the side of a frequented ■street, in violation of a city ordinance, with the electric plug in and *650brakes unset so that it could readily be started, tb.e owner is liable for the death of a child four years of age who climbed upon the wheel of the truck, started it in operation, and was thrown thereby to his death.

3. Same — Proximate Cause.

The violation of a city ordinance in parking a truck on the wrong side of a street, while negligence *per se,*the negligence must be the proximate cause of the injury alleged in order to sustain an action for damages.

4. Same — Attractive Nuisance.

An electric delivery truck is not an “attractive nuisance,” but a recovery may be had when it is negligently left on a city street ready to start, and a child of tender years sets it going and its death is thereby proximately caused, under circumstances from which the result should have reasonably been anticipated in the exercise of ordinary care.

5. Appeal and Error — Burden of Proof — Issues—Verdict Set Aside in Pari;.

The trial court has a discretion to submit issues arising from the evidence and pleadings for the jury to determine, and while it is improvident to set aside the verdict on one of the issues, when such issue is interwoven with the others, it will not be held for reversible error when the appealing party has not shown prejudice thereby.

Appeal by defendant from MeckleNBueg Superior Court. *Lane, J.*

Action by plaintiff to recover damage on account of wrongful death of plaintiff’s intestate. From a judgment in favor'of the plaintiff, defendant appeals. No error.

The evidence tended to show that 22 August, 1924, the defendant’s large electric delivery truck was parked on the left side of Brevard Street, Charlotte, contrary to a parking ordinance, while its driver went into the house of A. S. Campbell to deliver a package of laundry. The driver approached this position “angling across the street.” The truck was painted black and red in checkerboard style. When the driver was going into the Campbell house he saw the Sams child, plaintiff’s intestate, coming down the steps. These are half-moon steps, and go from the ground to the second story. “It is about six feet from the foot of these stairs to the curbstone.” This Sams child came right on down and walked out of the gate to the side of the truck and got up on its left front wheel, but on the left side. The control lever is located between the steering wheel and side of the body. The child climbed up on the left front wheel, leaned over the side of the body and got hold of the steering wheel and then reached the lever and pushed it down and the car started.

When the car started the child was on the left front wheel and his feet were thrown out from under him and he caught on the side. The car went southwardly down North Brevard Street, “angling across the street.” This indicated that the driver did not turn his wheels toward *651the curb when he stopped the truck. The driver was still in the house. A witness jumped on the truck in an effort to stop it, and the child fell off and the truck ran over him injuring him so that he died in only twenty minutes.

There was evidence tending to show that if the truck had been parked to the right side of the curb, the child could not have reached the steering apparatus from the right, or curb side, if standing on the right-hand wheel. None of these trucks have “controller and drive” on the right side. The wheel tread is 56 inches. The defendant had owned eight electric trucks of the same kind. The left side is boxed up and the right side is not. It would be easy for a child to climb up' into the truck from the right side. The switch plug on the truck is on the right side. The truck could not be moved by electric current if the switch plug is out; this big brass plug slips in and makes the connection by which the electric current is turned on. The Sams child was strong and healthy, 4 years old and accustomed to playing out on the sidewalk. If the switch plug is removed the truck is practically dead. The car was left with the brakes loose, not set. The witness who stopped the car after the injury, put on the brakes and stopped the car.

*McCall, Smith & McCall for plaintiff.*

*J. Laurence Jones and J. A. Lockhart for defendant.*

Yasser, J.

There must, of necessity, be a period within which a child is incapable of exercising care to such a degree as may be otherwise legally applicable to the given situation. We are of the opinion that a child 4 years old is incapable of negligence, primary or contributory. 20 R. C. L., 124, paragraph 105; *Shellaberger v. Fisher,*143 Fed., 937; *Purtell v. Philadelphia Coal Co.,*256 Ill., 110; *South Bend v. Turner,*156 Ind., 418; *Schmitz v. St. Louis R. Co.,*119 Mo., 256; *Sou. R. Co., v. Chatman,*124 Ga., 1026; *Chicago City R. Co. v. Wilcox,*138 Ill., 370; *Evansville v. Senhenn,*151 Ind., 42; *Barnes v. Shreveport City R. Co.,*47 La. Ann., 1218; *Buechner v. New Orleans,*112 La., 599; *Twist v. Winona R. Co.,*39 Minn., 164; *Christian v. Fernandez,*100 Miss., 76; *O’Flaherty v. Union R. Co.,*45 Mo., 70; *Newman v. Phillipsburgh Horse-Car R. Co.,*52 N. J. L., 446; *Mangam v. Brooklyn City R. Co.,*38 N. Y., 455; *Bottoms v. R. R.,*114 N. C., 699; *Bolin v. Tobacco Co.,*141 N. C., 300; *Ruehl v. Rural Telephone Co.,*23 N. D., 6; *Cleveland Rolling Mill Co. v. Corrigan,*46 Ohio St., 283; *Kay v. Pennsylvania R. Co.,*65 Pa. St., 269; *Summers v. Bergner Brewing Co.,*143 Pa. St., 114; *Evers v. Philadelphia Traction Co.,*176 Pa. St., 376; *Tucker v. Buffalo Cotton Mills,*76 S. C., 539; *Gunn v. Ohio River R. Co.,*42 W. Va., 676; *Hemingway v. Chicago R. Co.,*72 Wis., 42.

*652This ruling is in accord with, the decisions throughout this country, as indicated by the following: *McDermott v. Severe, 202*U. S., 600. In this case the Court affirmed the judgment for plaintiff, a boy 6 years and 10 months old. The trial court instructed the jury that, since plaintiff was under 7 years of age, contributory negligence could not be attributed to him. *Tea Co. v. Freedman,*94 C. C. A., 369; *Northern Pac. R. Co. v. Shevenack, 122*C. C. A., 178; *Sheffield Co. v. Harris,*183 Ala., 357; *St. Louis I. M. & S. R. Co. v. Denty,*63 Ark., 177; *L. & N. R. R. Co. v. Arp,*136 G-a., 489; *Anderson v. Ry. Co.,*15 Idaho, 513; *Devine v. Chicago Ry. Co.,*189 Ill. App., 435; *U. S. Brewing Co. v. Stoltenberg,*211 Ill., 531; *Elwood Electric Co. v. Ross,*26 Ind., 258; *Smith v. A. T. & S. F. R. R. Co.,*25 Kans., 738; *Ill. Cent. R. R. Co. v. Dupree,*138 Ky., 459; *Palermo v. Orleans Ice Mfg. Co.,*130 La., 833; *Morgan v. Aroostook Valley R. Co.,*(Maine), 98 Atl., 628; *Marsland v. Murray,*148 Mass., 91; *Hoover v. Detroit R. Co.,*188 Mich., 313; *Berry v. R. R.,*214 Mo., 593; *Dorr v. Ry.,*76 N. H., 160; *Napurana v. Young,*74 N. J. L., 627; *Birkett v. Knickerbocker Ice Co.,*110 N. Y., 504; *Levine v. Ry.,*70 Ap. Division, 426, affirmed 177 N. Y., 523; *McDonald v. O’Reilly,*45 Oreg., 589; *Counizzarri v. Phila. & R. Ry Co.,*248 Pa., 474; *Dodd v. Spartanburg Ry. Cas and Electric Co.,*95 S. C., 9; *Wise & Co. v. Morgan,*101 Tenn., 273; *Ollis v. H. E. & W. T. Ry. Co.,*31 Tex. Civil App., 601; *Smalley v. R. R.,*34 Utah, 423; *N. & W. R. R. Co. v. Groseclose’s Adm’r.,*88 Va., 267; *American Tobacco Co. v. Polisco,*104 Va., 777; *Eskildsen v. City of Seattle,*29 Wash., 583; *Parrish v. City of Huntington,*57 W. Va., 286; *Gibson w. City of Huntington,*38 W. Va., 177; *O’Brien v. Wis. Cent. T. Co.,*119 Wis., 7; *Wald v. Electric Ry.,*18 Manitoba, 134, affirmed in 41 Can. S. C., 431; *Cooke v. Midland G. W. Ry.,*15 Ann. Cas., 557; *McGregory v. Ross,*(England) 10 Rettie, 725; L. R. A., 1917 F., 104.

A child of this tender age merely indulges the natural instincts of a child and amuses himself with an empty cart, a deserted horse, an automobile or an electric truck, or whatever may be in his sight. In so doing he is not negligent. *Lynch v. Nurdin,*113 Eng. Rep., 1041, 1 Q. B. Rep., 29. This case has been regarded as the basic authority for this doctrine. Its facts are these: “Mr. Nurdin was an egg merchant, and used to send his servant round Soho with a cart to deliver eggs to his customers. One day, when the man was out with the cart as usual, he imprudently left it for half an hour or so standing by itself on Compton Street, drawn up by the side of the pavement. While he was away some little children began'playing about the cart, climbing into it, and having all kinds of games. Amongst them was a little boy named Lynch, aged six years. He was in the act of climbing the step with a view to securing a box seat, when another mischievous little boy *653pulled at tbe horse’s bridle. The borse moved on, and the little Lynch was thrown to the ground and hurt.

“The child successfully brought an action for damages against the egg merchant, it being considered that he was not guilty of contributory negligence, as he had only obeyed a child’s natural instinct in playing with the cart.” Shirley’s Leading Cases in the Common Law (3rd English Edition), 273.

This principle is also announced in *Magel v. Railway Co.,*75 Mo., 653; *Koons v. R. R.,*65 Mo., 592; *R. R. v. Fort,*84 U. S., 553; *R. R. v. Stout,*84 U. S., 657; Bailey on Personal Injuries, 1291; Black on Contributory Negligence, secs. 137-140; *Rolin v. Tobacco Co., supra; Berry v. R. R.,*214 Mo., 593; *Birge v. Gardiner,*19 Conn., 507; *Daley v. Norwich & W. R. Co.,*26 Conn., 591; *Wilmot v. McPadden,*76 Conn., 367, 19 L. R. A. (N. S.), 1101; *Haynes v. Cas Co.,*114 N. C., 203; *Powers v. Harlowe,*51 Am. Rep., 160; *Kramer v. R. R.,*127 N. C., 330; *Barnett v. Mills,*167 N. C., 576, and cases cited and discussed by the late *Mr. Justice Allen.*In *Wheeling and Lake Erie R. R. Co. v. Harvey,*77 Ohio St., 235, 83 N. E. 797, 122 Am. St. Rep., 503 (including *Schwartz v. Skoon Water Works Co. idem.,*522), the various views of this principle are cited. To the same effect is *Krachanake v. Mfg. Co.,*175 N. C., 435; *Richardson v. Libes,*188 N. C., 112 (a child 6 years old playing with dynamite caps. This special class of injuries to children is authoritatively reviewed in L. R. A., 1917 A., 1295N); *Graham v. Power Co.,*189 N. C., 381. In *Ashby v. R. R.,*172 N. C., 98, it is held that contributory negligence cannot be attributed to a child of 8 years. Authorities might he extended, but we deduce the rule to be that one is held responsible for all the consequences of his acts which are natural and probable and ought to have been foreseen by a reasonably prudent man, and if one wrongfully leaves upon a public street, in a populous city, a large electric delivery truck, with the “plug” in its place, and the brakes loose and not set, which he, as a reasonable man, ought to have foreseen, in the exercise of ordinary care, would likely be disturbed by heedless children, then he is liable for an injury resulting from such negligence. *Lane v. Atlantic Works,*111 Mass., 136; *Union Pac. v. McDonald,*152 U. S., 262; *Stark v. Holtzclaw,*105 Sou., 330 (Florida).

The trial court in the charge to the jury correctly applied the rule of negligence, proximate cause, explaining an ef&cient intervening cause which relieves of liability. The defendants’ liability has been determined by the rule of the prudent man, according to the proper test.

The court fully charged the jury that parking the truck on the left side of the street, contrary to the ordinance, was negligence; but, in order to answer the first issue “Yes” on this phase of the case, they *654must find that tbis negligence was tbe proximate cause of tbe injury. Tbis charge is sustained. *Kyne v. Wilmington,*14 Atlantic, 922; *Gibson v. Leonard,*143 Ill., 182, 17 L. R. A., 588; *Browne v. Cooper & Co.,*191 Ill., 226; *Nichey v. Steuder,*164 Ind., 189; *Edwards v. R. R.,*129 N. C., 78; *Henderson v. Traction Co.,*132 N. C., 779; *Duval v. R. R.,*134 N. C., *331; Cheek v. Lumber Co., 134*N. C., 225; *Leathers v. Tobacco Co.,*144 N. C., 330; *Starnes v. Mfg. Co.,*147 N. C., 556; *Rich v. Electric Co.,*152 N. C., 689; *Ledbetter v. English,*166 N. C., 125; *Newton v. Texas Co.,*180 N. C., 561; *Stultz v. Thomas,*182 N. C., 470.

However, sucb negligence must be tbe proximate cause of tbe injury. *McNeill v. R. R.,*167 N. C., 390; *Dunn v. R. R.,*174 N. C., 254; *Chancey v. R. R.,*174 N. C., 351; *Lea v. Utilities Co.;*175 N. C., 459; *Bidge v. High Point,*176 N. C., 421; *Balcum v. Johnson, 177*N. C., 213; *Construction Co. v. R. R.,*184 N. C., 179.

Tbe act of tbe Sams child in starting tbe truck, under tbe charge of tbe court, and in tbe light of tbe admitted facts, was not an excusing, intervening, efficient cause. Tbe test is set out in *Balcum v. Johnson, supra; Harton v. Telephone Co.,*141 N. C., 455.

Proximate cause, as defined in *Taylor v. Lumber Co.,*173 N. C., 112, was applied in tbe instant case.

There was no error in refusing tbe motion to nonsuit and to give tbe prayers for instruction further than given in tbe charge.

Negligence was defined according to Baron Alderson’s formula: “Negligence is tbe omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate tbe conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” Pollock on Torts, 442.

We are not disposed to extend tbe so-called “attractive nuisgnce” doctrine *(Briscoe v. Lighting and Power Co.,*148 N. C., 396, 62 S. E., 600, 19 L. R. A. (N. S.), 1116). Tbe electric truck is in no sense a nuisance. It is a common vehicle of commerce. Tbe street on which it was parked, without due care for tbe protection of tbe public, is open to all tbe people, including plaintiff's intestate, and tbe principle is forcibly reannounced in *Ferrell v. Cotton Mills,*157 N. C., 528, when it says: “Although tbe dangerous thing may not be what is termed an attractive nuisance, that is to say, not have a special attraction for children, by reason of their childish instinct, yet, when it is so left exposed that they are likely to come into contact with it, and when their coming in contact with it is obviously dangerous to them, tbe persons so exposing tbe dangerous thing should reasonably anticipate tbe injury that is likely to happen to them from being so exposed, and is bound to take *655reasonable care to guard, it so as to prevent injury to them.” *Iamurri v. Saginaw City Gas Co.,*148 Mich., 27.

Tbe ordinance of Charlotte, offered by defendant during the examination of plaintiff’s witnesses was not competent to show diligence of plaintiff’s intestate.

The defendant asserts error in setting aside so much of the first verdict as related to damages.

As this Court has said in *Jarrett v. Trunk Co.,*144 N. C., 299, 302; *Barringer v. Barringer,*153 N. C., 392, this practice in the trial court is not to be commended. Frequently the issues are so interwoven that serious harm may result from setting aside only one issue. The same rule obtains in the Federal courts. *R. R. Co. v. Ferebee,*238 U. S., 274.

However, prejudice to the appellant does not affirmatively appear *(Perry v. Surety Co., ante,*284), and the court had the power, in its discretion so to do *(Billings v. Observer,*150 N. C., 540). No question of law or legal inference is presented by this exception and we will not interfere.

The evidence objected to was competent to explain the truck and its construction to the jury. We find

No error.