See also Holland v. Boston, 213 Mass. 560; Holden v. McGillicuddy, 215 Mass. 563; Conroy v. Mather, 217 Mass. 91.
In Taylor v. Stewart, 172 N. C. 203, Brown, J., (for the court) said:
“The plaintiff sues to recover for the death of his child, who was run over and killed by an automobile, belonging to the defendant J. W. Stewart. At the time the car was being operated by James Stewart, the son of the said J. W. Stewart, a lad of 13 years of age. A colored chauffeur, who had been sent out with the car by the owner, was sitting beside the lad.
His honor charged the jury that under the laws of North Carolina it was a misdemeanor for a person under the age of 16 to drive an automobile upon any highway or public street, and that it is a circumstance from which the jury may infer negligence, and that it does not necessarily follow that the jury shall conclude it was negligence, but that it is a circumstance to go to the jury. In this his honor erred. He should have instructed the jury that it is negligence per se for the defendant James Stewart to have driven the machine in violation of the statute law of the state. Zageir v. Southern Express Co., 89 S. E. 44; Paul v. Railroad, 170 N. C. 231, 87 S. E. 66, L. R. A. 1916B, 1079; Ledbetter v. English, 166 N. C. 125, 81 S. E. 1066.”
See Davis, The Plaintiff’s Illegal Act as a Defense in Actions of Tort, 18 Harvard Law Rev. 505; Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.
[251]. Part of case omitted; also arguments of counsel.
[252]. Williams v. New Albany R. Co., 5 Ind. 111; Vandalia R. v. Duling, 60 Ind. App. 332; Union R. Co. v. Rollins, 5 Kan. 167 (as to legislation, see Darling v. Rodgers, 7 Kan. 592; Missouri R. Co. v. Olden, 72 Kan. 110); Crawford v. Hughes, 3 J. J. Marsh. 433; Little v. Lathrop, 5 Me. 356; Richardson v. Milburn, 11 Md. 340; Eames v. Salem R. Co., 98 Mass. 560; Collins v. Lundquist, 154 Mich. 658; Vandegrift v. Rediker, 22 N. J. Law, 185; Munger v. Tonawanda R. Co., 4 N. Y. 349; Gregg v. Gregg, 55 Pa. St. 227; Hurd v. Rutland R. Co., 25 Vt. 116; Metropolitan Ins. Co. v. Clark, 145 Wis. 181 Accord.
As between adjoining owners, in absence of statutory duty as to division fence, see Bissell v. Southworth, 1 Root, 269; McNeer v. Boone, 52 Ill. App. 181; Myers v. Dodd, 9 Ind. 290; Stephenson v. Elliott, 2 Ind. App. 233; De Mers v. Rohan, 126 Ia. 488; Markin v. Priddy, 40 Kan. 684; Sturtevant v. Merrill, 33 Me. 62; Gillespie v. Hendren, 98 Mo. App. 622; Tewksbury v. Bucklin, 7 N. H. 518; Deyo v. Stewart, 4 Denio, 101; Angell v. Hill, 18 N. Y. Supp. 824; Kobayashi v. Strangeway, 64 Wash. 36.
As to liability of the owner for unauthorized entry of a dog on another’s lands, see Brown v. Giles, 1 Carr. & P. 118; Read v. Edwards, 17 C. B. N. S. 245; Doyle v. Vance, 6 Vict. L. R. (Law) 87.
Trespass on unenclosed land by chickens, see Evans v. McLalin, 189 Mo. App. 310.