Winters Ex Rel. Gordon v. Burch ( 1973 )

200 S.E.2d 55 (1973) 284 N.C. 205

Timothy Sheldon WINTERS, By his guardian ad litem, L. G. Gordon, Jr., and Harry C. Winters,
v.
Patricia Patterson BURCH.

No. 7.

Supreme Court of North Carolina.

November 14, 1973.

Hatfield & Allman by James W. Armentrout and R. Bradford Leggett, Jr., Winston-Salem, for plaintiffs-appellants.

Womble, Carlyle, Sandridge & Rice by Allan R. Gitter, Winston-Salem, for defendant-appellee.

SHARP, Justice:

Defendant's motion for a directed verdict at the close of plaintiffs' evidence presents the question whether the evidence, considered in the light most favorable to plaintiffs, is sufficient to justify a verdict in their favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973); Younts v. Insurance Co., 281 N.C. 582, 189 S.E.2d 137 (1972); Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971). It has long been the rule in this State that the presence of children on or near a highway is a warning signal to a motorist, who must bear in mind that they have less capacity to shun danger than adults and are prone to act on impulse. Therefore "the presence of children on or near the traveled portion of a highway whom a driver sees, or should see, places him under the duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury." Brinson v. Mabry, 251 N.C. 435, 438, 111 S.E.2d 540, 543 (1959). See Hamilton v. McCash, 257 N.C. 611, 127 S.E.2d 214 (1962); Pope v. Patterson, 243 N.C. 425, 90 S.E.2d 706 (1956); Greene v. Board of Education, 237 N.C. 336, 340, 75 S.E.2d 129, 131 (1953).

However, no presumption of negligence arises from the mere fact that a motorist strikes and injures a child who darts into the street or highway in the path of his approaching vehicle. Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610 (1961). The rule established by our decisions is well stated in 4 Blashfield, Automobile Law and Practice (3d Ed. 1965) § 151.11 as follows:

"A motorist is not, however, an insurer of the safety of children in the street or highway; nor is he bound to anticipate the sudden appearance of children in his pathway under ordinary circumstances. Accordingly, the mere occurrence of a collision between a motor vehicle and a minor on the street does not of itself establish the driver's negligence; and some evidence justifying men of ordinary reason and fairness in saying that the driver could have avoided the accident in the exercise of reasonable care must be shown. In the absence of such a situation, until an automobile driver has notice of presence or likelihood of children near line of travel, the rule as to the degree of care to be exercised as to children is the same as it is with respect to adults." See Badger v. Medley, 262 N.C. 742, 138 S.E.2d 401 (1964); Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702 (1964); Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426 (1962); Brewer v. Green, supra; Brinson v. Mabry, supra; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43 (1934); 4 Blashfield, supra, §§ 151.13, 151.23.

Applying the foregoing principles to the evidence in this case, we hold that it fails to establish actionable negligence on the part of defendant. Her motion for a directed verdict, therefore, was properly allowed. There is no evidence tending to show that defendant was traveling at an excessive rate of speed. Taking as true Winters' testimony that there were 54 feet of skid marks, yet plaintiffs have offered no evidence that such marks indicate speeding. We note that in a residential district the maximum speed limit is 35 MPH. G.S. § 20-141(b)(2). Further the skid marks support no inference that the slick tire affected defendant's ability to stop.

At this point we note that Winters did not identify the two driveways between which he said he found the plastic, the point where he said the skid marks began. It seems unlikely that he would have referred to Bretton Street as a driveway and, as Lambert suggested, the two driveways into the parking lot were not pertinent.

From Bretton Street north, Pleasant is straight for 176 yards. As defendant traveled south, however, her view to the right beyond the curb was necessarily obstructed at various points by trees, bushes, and fences, the exact location of most of which cannot be determined from the record. It is also possible that the Holt automobile parked in the drive was a partial obstruction.

While all the evidence tends to show that Timmy entered the street from defendant's right (west side), there is no evidence tending to show where he was when, in the exercise of proper care, she could or should have seen him, or at what point he rode into the street. Did the boy ride over the curb from the Holt yard into the street in front of defendant's approaching automobile? If so, from where did he come? Did he come out of a drive and, if so, which drive? Was he in the street, traveling in the same direction as defendant and suddenly turned to his left?

The evidence adduced at the trial does not provide the answer to the crucial question in the case that is, whether defendant, in the exercise of due care, could have seen the boy in sufficient time to anticipate his collision course and to have taken effective measures to avoid it. Left to speculation is the time when defendant should have first seen Timmy as well as the place and manner of his entrance into the street. Negligence is not presumed from the mere fact that defendant's automobile struck and injured the boy. Plaintiffs have the burden of establishing that her negligence was the proximate cause of the boy's injury. In our view "the probabilities arising from a fair consideration of the evidence. . . afford no reasonable certainty on which to ground a verdict." Mills v. Moore, 219 N.C. 25, 31, 12 S.E.2d 661, 665 (1941).

The decision of the Court of Appeals is

Affirmed.