#### VERNON TART, by His Next Friend EDWARD TART, v. SOUTHERN RAILWAY COMPANY and NORTH CAROLINA RAILROAD COMPANY.

(Filed 8 January, 1932.)

1. Appeal and Error J g — Where judgment overruling motion of non-suit is reversed, other alleged errors in trial become immaterial.

Where the Supreme Court on appeal reverses the judgment of the lower court overruling the defendant’s motion as of nonsuit, other alleged errors in the trial of the action become immaterial and will not be considered on appeal.

a. Railoads D b — Evidence of plaintiff’s contributory negligence held to bar recovery as a matter of law.

Where in an action by an eleven-year-old boy, brought by his next friend, to recover for an injury received by the plaintiff in an accident at a railroad crossing, the plaintiff introduces some evidence of the defendant’s negligence in failing to give the proper signals and warnings of its approaching train, etc., but considering only the evidence most favorable to the plaintiff, it tends to show that he attempted to walk across the defendant’s tracks at a grade crossing, that there was an open space of about twenty feet between a track on which some box cars were standing and the track on which the train was approaching, that the track was straight for some distance and that the defendant’s train could have been seen and heard, that the plaintiff failed to see the train until it was almost upon him, when he started to run, fell, and was struck and injured, but that he' was normally alert and intelligent for his age: *Held,**53the evidence discloses contributory negligence barring recovery as a matter of law, and the defendant’s motion as of nonsuit should have been allowed, the law not extending its protection to those who can see and hear and will not do so.

3. Negligence O a — Degree of care law requires to he exercised by eleven-year-old boy for his own safety.

While an eleven-year-old boy is not chargeable with the exercise of that degree of caution before crossing a railroad track as a person of mature years, he is required to exercise that degree of care as is reasonably within his capacity and which the evidence shows that he should have exercised for his own safety.

Appeal by plaintiff from *Warlick, J.,*at September Term, 1931, of Guilfoed.

Affirmed.

This is an action to recover damages for personal injury alleged to lrave been suffered by tbe plaintiff through the' negligence of the Southern Railway Company. The case was tried in the Municipal Court of the city of High Point,. The defendants’ motion for nonsuit was denied, the usual issues were submitted to the jury and answered in favor of the plaintiff, and judgment was given awarding damages. The defendants appealed to the Superior Court, and 'the judgment of the municipal court refusing the motion for nonsuit was reversed.

*Gold, York & McAnally for plaintiff.*

*Roberson, Haworth & Reece and Richard 0. Kelly for defendants.*

Adams, J.

Whether other error prejudicial to the defendants was committed during the trial in the municipal court is a matter with which we need have no concern if the Superior Court was correct in dismissing the action, and this question we must determine by giving to the evidence such construction as is most favorable to the plaintiff. Given this interpretation the evidence tends to establish the following facts:

The plaintiff was injured at the Taylor Street crossing in the city of High Point. At this place the defendants have five tracks extending northeast and southwest: a sidetrack, a passing track, the southbound main line, the northbound main line, and another sidetrack. Broad Street runs parallel with the tracks on the north side and Taylor Street intersecting with Broad Street crosses the tracks and intersects with Millis Street on the south. Midway between the outside tracks the crossing was about ten feet in width — wide enough for one automobile to pass another; at other places it was much wider. It was smooth in the center but on each side the rails were two or three inches above the ground. There was an are light fourteen steps from the outside rail on the west side of the railroad.- A watchman’s house, six by eight feet, *54stood near tbe intersection of Broad and Taylor streets, but at tbe time of tbe injury no watchman was on duty:

On tbe evening of 4 April, 1930, at about balf-past seven o’clock tbe plaintiff and Gilchrist Newell passed from tbe south side over tbe Taylor Street crossing, went to a drug store for ice cream, and started back to tbe borne of tbe plaintiff’s aunt. They passed tbe watchman’s bouse and again went on tbe crossing. On their right-band, that is, fourteen steps from tbe southern side of tbe crossing there were box cars on tbe sidetrack and tbe passing track nearest Broad Street. Between tbe second track from Broad Street (tbe passing track) and tbe northbound track on which tbe injury occurred lies tbe southbound track. Tbe distance between the passing track and tbe southbound is about ten feet, and ten feet between tbe southbound and tbe northbound, making an open space of about twenty feet between tbe passing track and tbe northbound track. On tbe latter a long freight train came from tbe south or southwest.

The plaintiff was eleven years and seven months old. He and bis companion were walking. He testified that no signal was given of tbe approaching train — that be beard neither bell nor whistle. He then portrayed tbe accident.

He said that be looked before going on tbe tracks but could not see the train on account of tbe box cars; that be looked again at tbe watchman’s bouse; that be looked tbe last time when be was in front of tbe ears; and that be did not know bow many tracks be crossed or tbe track on which tbe train was running. When asked whether be looked after be bad passed tbe cars be answered, “Tbe train was right on me when I looked; . . . that was after I bad x^assed tbe end of tbe box cars. ... It was right on me and I started to run and fell . . . I fell on my bands and tbe train bit me as I was getting uj). I didn’t see tbe train before I started to run across. I never saw tbe train until it was right over me. I saw tbe train before I stumbled; I was not running when I stumbled; I started to run and fell. I was in tbe middle of tbe track, right at it. I was right on one of tbe tracks when I first saw tbe train, on tbe track tbe train was on. After that is when I stumbled and fell. I stumbled on a rail, tbe rail tbe train was on. I didn’t fall over tbe one I was standing on; I fell over tbe next one. . . . Tbe front |>art of tbe train bit me, tbe cowcatcher. I was in tbe middle of tbe track and that was tbe first time I saw tbe train ... I looked after I went by tbe end of tbe cars. Tbe train was right on me. I got bit before I saw it.”

Tbe plaintiff’s evidence tended to show that tbe tracks were straight for at least 'three-quarters of a mile, although tbe x>laintiff testified *55that at one place there'was a curve. His father said the accident happened sixty-one steps from the crossing, and there, on the north side, the plaintiff was found with a crushed leg' and a cut on his back. Other witnesses testified in corroboration.

Giving the plaintiff the benefit of every reasonable inference and granting the engineer’s negligent failure to signal the approach of the train and the railway’s negligent failure to observe the ordinance, we cannot escape the conviction that the plaintiff’s negligence was the proximate cause of his injury. After going over the two tracks on which the box cars were standing he entered a zone twenty feet in width in which according to all the evidence he offered the range of his vision was unobstructed, and deliberately walked directly in front of the oncoming train. To say that he did not see or hear it is a challenge to universal experience. The courts give slight heed to the testimony of a witness who is willing to say that he cannot see or hear when there is nothing to keep him from seeing and hearing: “The law is not able to protect one who has eyes and will not see — ears and will not hear.” *Harrison v. R. R.,*194 N. C., 656. The plaintiff first saw the train Avhen it was “right on” or “right over” him; he did not say that he could not have seen it, merely that he did not. His testimony manifests his negligence. *Eller v. R. R.,*200 N. C., 527; *Bailey v. R. R.,*196 N. C., 515.

Upon the facts disclosed his age does not bar the defense of contributory negligence. The doctrine is settled that a child is not chargeable with the same degree of care as an experienced adult and that the standard of conduct varies with his age, capacity and experience; but he must exercise care and prudence equal to his capacity. *Alexander v. States-ville,*165 N. C., 527. The law with reference to the employment of minors in the operation of machinery has no application. *Rolin v. Tobacco Co.,*141 N. C., 300; *Hauser v. Furniture Co.,*174 N. C., 463. In traversing a public crossing the plaintiff was required as a matter of self-protection simply to make use of his eyesight and his hearing. He was an “average boy, had been in several schools,” and was fully competent to perform this duty. *McCulloch v. R. R.,*188 N. C., 797; *Foard v. Power Co.,*170 N. C., 48; *Murray v. R. R.,*93 N. C., 92.

In the foregoing discussion we have not considered any part of the defendants’ evidence which is repugnant to or inconsistent with that of the plaintiff. It may be noted, however, that four of their witnesses testified to a statement of Gilchrist Newell, who was with the plaintiff, to the effect that he “hopped the train and Yernon was to catch it right behind him”: that he jumped off, sought the plaintiff, and found him *56injured. Tbe plaintiff’s evasive answers to questions asked’bim on cross-examination in regard to these circumstances are not characterized by commendable frankness. However this may be, the .proximate cause of the deplorable injury must be assigned to the plaintiff’s negligence.

J udgment

Affirmed.