¶1(dissenting) :
¶2In my opinion the judgment should be affirmed. I therefore respectfully dissent.
¶3The accident out of which this action arose occurred at approximately 12:30 p. m. on U. S. Highway No. 321, about two miles north of Columbia, at or near a grocery store just before reaching the intersection of Sharpe Road and Highway 321. The road in this area was almost straight with a downgrade for a distance of approximately 700 feet before reaching the point of collision from the direction appellant was traveling. The view was unobstructed for this distance.
¶4While appellant testified that he did not see the deceased before the collision, it is inferable from the testimony of the passenger in his car that, if appellant had been keeping a proper lookout, as was his duty, he would have seen the deceased in ample time to have avoided striking him. The passenger testified that he had a clear view; observed the deceased for approximately 700 feet before the collision; saw him indicate, shortly before the impact, that he was going to turn across the highway toward a grocery store, and called out to appellant, “Watch out for the boy on the bicycle.” Appellant offered no explanation as to why he failed to see that which was clearly visible to his passenger sitting beside him.
¶5In addition to the inference of a failure of appellant to keep a proper lookout, there is testimony of excessive speed. *58This testimony as to speed, if believed, would raise serious questions as to the distance of appellant from the point of impact when the deceased started across the road.
¶6The majority opinion concedes that the testimony “might tend to show some negligence on the part of the appellant” but reverses the judgment on the ground that the deceased a 15 year old boy and only in the 7th grade, was guilty of contributory negligence as a matter of law.
¶7The standard for determining whether the deceased was guilty of negligence was “not whether the child acted as an ordinarily prudent child of its age would have acted, but whether it acted as a child of its age, and of its capacity, discretion, knowledge, and experience would ordinarily have acted under the same or similar circumstances.” Chitwood v. Chitwood, 159 S. C. 109, 156 S. E. 179. Of course, the facts and circumstances surrounding the injury and death are properly considered in determining the question.
¶8The deceased had just reached 15 years of age. He had failed two grades in school and was in only the seventh grade. He had been reared in the country by his grandmother.
¶9Under the facts and legal principles, the issue of decedent’s capacity to exercise due care and whether he was guilty of contributory negligence were for the jury to determine. I would affirm the judgment.
¶10I concur in the opinion of Justice Lewis that the evidence raised jury issues as to negligence and contributory negligence. However, this leaves unresolved the other errors assigned by appellant as grounds for a new trial.
¶11I would sustain the exception to the court’s instruction to the jury on the doctrine of last clear chance, which applies only when the antecedent negligence of the injured *59party had become remote in the chain of causation and a mere condition of the injury. Smith v. Blackwell, 250 S. C. 170, 156 S. E. (2d) 867 (1967). That is not this case. If the jury should conclude that plaintiff’s intestate had the capacity to exercise care under existing circumstances and was negligent in failing to look before attempting to cross the highway, it is inescapable that any such negligence on his part continued to the moment of impact. Therefore, the doctrine of last clear change has no application, and it was error for the court to give the instruction complained of.