
    Terre Haute, Indianapolis and Eastern Traction Company v. Stevenson.
    [No. 10,021.
    Filed February 6, 1920.
    Rehearing denied May 12, 1920.]
    1. Negligence. — Contributory Negligence. — Child of Five Years. —A child of five years cannot be guilty of contributory negligence. p. 295.
    2. Negligence. — Contributory Negligence. ■ — ■ Imputability to Child of Five Years. — Contributory negligence cannot be imputed to a child of five years, p. 295.
    From Sullivan Circuit Court; William H. Bridwell, Judge.
    
      Action by Majoria Stevenson, by next friend, against the Terre Haute, Indianapolis. and Eastern Traction Company. From a judgment for plaintiff, the defendant appeals.
    
      Affirmed.
    
    
      McNutt, Wallace, Sanders & Randel and Hays & Hays, for appellant.
    
      Orion B. Harris, Charles H. Bedwell, James E. Piety and John O. Piety, for appellee.
   Nichols, C. J.

The accident involved in this cause resulted in the serious injury of a mother and her little daughter, five years old, and in the death of an older daughter. The mother is the appellee in Terre Haute, etc., R. Co. v. Stevenson (1920), 189 Ind. 100, 123 N. E. 785, 126 N. E. 3. The injured daughter is the appellee in this case. In the case decided by the Supreme Court, it was held that the mother and older daughter were guilty of contributory negligence, but the judgment for the appellee was affirmed upon the doctrine of “last clear chance.”

In this case, the appellee, being non sui juris, was not guilty of contributory negligence, nor could the contributory negligence of the mother and older daughter be imputed to her. We have then, as far as this appellee is concerned, a case of simple negligence. The facts of the two cases are essentially the same, and there can be nothing gained in repeating them in this opinion. There being no substantial difference in the proceedings in the two cases, and the case in the Supreme Court having been affirmed, the judgment in this case is also affirmed.  