The basis of the nonsuit is that plaintiff’s intestate was contributorily negligent as a matter of law under authority of Tart v. *115 R. R., 202 N. C., 52, 161 S. E., 720. Tbe Tart case, supra, is distinguishable by reason of the fact that there the accident occurred 61 steps from the crossing and the plaintiff traversed a distance of 20 feet with unobstructed view before stumbling in front of an on-coming train. Here, the injury occurred at the crossing which had just been obstructed by the shifting engine and cars.
It was conceded on the argument that, had plaintiff's intestate been an adult, the judgment of nonsuit would probably have been correct. Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Young v. R. R., 205 N. C., 530, 172 S. E., 177; Eller v. R. R., 200 N. C., 527, 157 S. E., 800; Pope v. R. R., 195 N. C., 67, 143 S. E., 350; Davidson v. R. R., 171 N. C., 634, 88 S. E., 759; High v. R. R., 112 N. C., 385, 17 S. E., 79. Without passing upon the suggested hypothesis, we are of opinion the issues should have been submitted to the jury under all the evidence in the case.
There is a presumption which comes to the aid of a child of tender years. Caudle v. R. R., 202 N. C., 404, 163 S. E., 122; Ghorley v. R. R., 189 N. C., 634, 127 S. E., 634; 20 R. C. L., 123; Note 27, Ann. Cas., 969.
Speaking to the subject in Rolin v. Tob. Co., 141 N. C., 300, 53 S. E., 891, Connor, J., delivering the opinion of the Court, quoted with approval: “It is hardly necessary to add that contributory negligence on the part of the minor is to be measured by his age and his ability to discern and appreciate the circumstances of danger. He is not chargeable with the same degree of care as an experienced adult, but is only required to exercise such prudence as one of his years may be expected to possess. ‘As the standard of care thus varies with the age, capacity, and experience of the child, it is usually, if .not always, when the child is not wholly irresponsible, a question of fact for the jury whether a child exercised the ordinary care and prudence of a child similarly situated; and if such care were exercised, a recovery can be had for an injury negligently inflicted, no matter how far the care used by the child falls short of the standard which the law exacts for determining what is ordinary care in a person of full age and capacity.’ 7 A. & E., 409; Plumly v. Birge, 124 Mass., 57.”
Likewise, in approval of the position are the decisions in Morris v. Sprott, 207 N. C., 358, 177 S. E., 13; Alexander v. Statesville, 165 N. C., 527, 81 S. E., 763; Fry v. Utilities Co., 183 N. C., 281, 111 S. E., 354; Brown v. R. R., 195 N. C., 699, 143 S. E., 536; Hoggard v. R. R., 194 N. C., 256, 139 S. E., 372; Murray v. R. R., 93 N. C., 92.