Brown Ex Rel. Brown v. Charlotte-Mecklenburg Board of Education ( 1967 )

153 S.E.2d 335 (1967) 269 N.C. 667

Jennifer J. BROWN, by her Legal Guardian, Next Friend, Robert F. Brown,
v.
CHARLOTTE-MECKLENBURG BOARD OF EDUCATION.

No. 275.

Supreme Court of North Carolina.

March 22, 1967.

Welling & Miller, Charlotte, for plaintiff appellant.

Brock Barkley, Charlotte, for defendant appellee.

LAKE, Justice.

The defendant did not except to the Commission's "Findings of Fact" 1, 2 and 3. The correctness of these findings is, therefore, not before us for review. Greene v. Board of Education, 237 N.C. 336, 75 S.E.2d 129. In any event, each of the findings incorporated in these paragraphs of the Commission's order is amply supported by evidence in the record and is, therefore, conclusive on appeal. G.S. § 143-293.

Items 13, 14 and 15, included by the Commission under the designation "Findings of Fact," are, however, mixtures of findings of fact and conclusions of law and, therefore, were subject to review by the superior court, and by us, on appeal. As stated by Ervin, J., speaking for the Court in Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639, "Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law." The determination of negligence, proximate cause and contributory negligence requires an application of principles of law to the determination of facts. These are, therefore, mixed questions of law and fact and so are reviewable on appeal from the Commission, the designation "Finding of Fact" or "Conclusion of Law" by the Commission not being conclusive.

Upon an appeal from the Industrial Commission, the reviewing court may not find facts in addition to those found by the Commission, even though there is in the record evidence to support such a finding, the appeal being "for errors of law only." G.S. § 143-293.

Consequently, the question for the superior court and for this Court is whether the facts found by the Commission are sufficient to support its conclusion that the driver of the bus was negligent. We hold that they are sufficient to support such conclusion. The Commission has found that for a substantial distance before he reached the children the driver could see them and that the plaintiff was standing upon the street pavement near the gutter, there being no sidewalk; the driver did see the children, some of whom were pushing and shoving as he approached; though going only two miles per hour, he drove the bus into the plaintiff and permitted it to continue to move forward five feet after she fell in front of the wheel. In Greene v. Board of Education, supra, Barnhill, J., later C. J., speaking for the Court, said:

"We have repeatedly held that the presence of children on or near a highway is a warning signal to a motorist. He must recognize that children have less capacity to shun danger than adults; * * *. This duty to exercise a high degree of caution in order to meet the standard of care required of a motorist when he sees or by the exercise of ordinary care should see children on a highway applies with peculiar emphasis to the operator of a school bus transporting children to their homes after school." (Citations omitted.)

Of course, the same duty rests upon the driver of a school bus picking up children for transportation to their schools. No doubt, on this occasion, the attention of the driver was attracted by the boys who were pounding on the door of the bus. Having observed that some of the children were rather exuberant and unruly, reasonable care for the safety of his charges would require him to stop the bus before reaching the group or to swing it well out to the left, which he could have done in safety since there was no other traffic on the street and, in any event, all other traffic would be required to stop in obedience to his display of the "Stop" signal. To continue on until the bus struck down the plaintiff whom he had seen standing in the street was negligence.

The plaintiff, being only twelve years of age, is presumed incapable of contributory negligence. Weeks v. Barnard, 265 N.C. 339, 143 S.E.2d 809. The Commission did not find such negligence by her and the evidence is not sufficient to require such a finding.

Commissioner Bean dissented from the order of the Commission on the ground that the award was excessive. The amount of damages to be awarded is a matter which the statute leaves to the discretion of the Commission. G.S. § 143-291. While the damages awarded in the present instance appear somewhat disproportionate to the Commission's findings as to the nature and extent of the injury, the award is not so large as to shock the conscience and, therefore, the order of the Commission may not be disturbed on that account.

The superior court was in error in sustaining the exceptions by the defendant to the order of the Commission. Its judgment must, therefore, be reversed and the cause remanded to the superior court for the entry of a judgment affirming the order of the Industrial Commission.

Reversed and remanded.

PLESS, J., took no part in the consideration or decision of this case.