N.C.P.I.—Motor Vehicle 104.25

The (state number) issue reads:

“Did the minor plaintiff, by his own negligence, contribute to his

[injury] [damage]?”

You will answer this issue only if you have answered the (state

number) issue as to the defendant's negligence "Yes" in favor of the

minor plaintiff.2

On this (state number) issue the burden of proof is on the

defendant. This means that the defendant must prove, by the greater

weight of the evidence, three things:

First, that the minor plaintiff was capable of negligence. The law

presumes that a child who is between seven and fourteen years of age is

not capable of negligence. However, this presumption may be overcome

by evidence that a child of the minor plaintiff’s age ordinarily would have

the discretion, judgment and mental capacity to discern and appreciate

circumstances of danger.3 It is your duty to consider all of the evidence in

the case and determine whether the defendant has proven, by the greater

weight of the evidence, that a child of the minor plaintiff’s age ordinarily

would have the discretion, judgment and mental capacity to understand

and avoid danger.4

Second, that the minor plaintiff was negligent. The test of what is

negligence, as I have already defined and explained it, is not the same

for the minor plaintiff as it is for the defendant. Even if a child who is

between seven and fourteen years of age is capable of negligence, the

child is not required to exercise the same degree of care for the safety of

others that is required of an adult5. The law imposes a duty upon a child

to exercise only that degree of care for the safety of others that a

reasonably careful child of the same age, discretion, knowledge,

experience and capacity ordinarily would exercise under the same or

similar circumstances.6 A child's failure to exercise the required degree of

care would be negligence.

And Third, that the minor plaintiff’s negligence was a proximate

cause of the minor plaintiff's [injury] [damage].

Proximate cause is a cause which in a natural and continuous

sequence produces a person's [injury] [damage], and one which a

reasonable and prudent child of the same age, discretion, knowledge,

experience and capacity could have foreseen would probably produce such

[injury] [damage] or some similar injurious result.

There may be more than one proximate cause of [an injury]

[damage]. Therefore, the defendant need not prove that the minor

plaintiff's negligence was the sole proximate cause of the [injury]

[damage]. The defendant must prove, by the greater weight of the

evidence, only that the minor plaintiff's negligence was a proximate

cause. If the minor plaintiff's negligence joins with the negligence of the

defendant in proximately causing the minor plaintiff's own [injury]

[damage], it is called contributory negligence, and the minor plaintiff

cannot recover.7

In this case, the defendant contends, and the minor plaintiff

denies, that the minor plaintiff was capable of negligence and was

negligent in one or more of the following respects:

Read all contentions of negligence supported by the evidence.

The defendant further contends, and the minor plaintiff denies, that

the minor plaintiff's negligence was a proximate cause of his own [injury]

[damage].

I instruct you that negligence is not to be presumed from the mere

fact of [injury] [damage].

Give law as to each contention of negligence included

above.

Finally, as to this (state number) issue on which the defendant has

the burden of proof, if you find, by the greater weight of the evidence,

that the minor plaintiff was capable of negligence, was negligent (in any

one or more of the ways contended by the defendant) and that such

negligence was a proximate cause of the minor plaintiff's [injury]

[damage], then it would be your duty to answer this issue "Yes" in favor

of the defendant.

If, on the other hand, you fail to so find, then it would be your duty

to answer this issue "No" in favor of the minor plaintiff.