Henson v. Wilson ( 1945 )

Winborne, J.

It is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires that the operator must be reasonably vigilant, and that he must anticipate and expect the presence of others. Hobbs v. Coach Co., ante, 323, 34 S. E. (2d), 211, and eases cited.

Moreover, it is said in Wall v. Bain, 222 N. C., 375, 23 S. E. (2d), 330, “It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel, and he is held to the duty of seeing what he ought to have seen.”

In the light of these principles applied to the evidence in the case in hand, we are of opinion and hold that the evidence taken in the light most favorable to plaintiff, is of sufficient probative force to take the case to the jury. The evidence is susceptible of findings by the jury: (1) That plaintiff’s intestate, Robert David Henson, was on tbe side of tbe left side embankment of tbe road cut, as tbe truck operated by defendant Wilson approached bim; (2) that if be were there, tbe operator of tbe truck saw bim, or by tbe exercise of ordinary care could and should have seen bim; (3) that tbe operator of tbe truck bad knowledge of tbe narrowness of tbe road and of tbe uneven surface of tbe road and its effect upon tbe loaded truck in relation to tbe left side embankment; and (4) that collision with, and injury to a child on such left side embankment was likely to ensue. If tbe jury should so find tbe facts to have been, from tbe evidence, and by its greater weight, it was tbe duty of tbe operator of tbe truck to exercise ordinary care to avoid collision with tbe child, and bis failure to do so would be negligence.

On tbe other band, defendants controvert tbe evidence of tbe plaintiff. That raises an issue of fact which alone tbe jury may decide. And we here express no opinion upon tbe weight of evidence. That is for tbe jury.

Tbe judgment below is

Reversed.