Colson Ex Rel. Mattocks v. Shaw , 301 N.C. 677 ( 1981 )

273 S.E.2d 243 (1981)

Sebastian Lee COLSON, by his Guardian Ad Litem, Clarence W. Mattocks, and Patricia Ann Colson
v.
Mamie Macon SHAW and Dan R. Douglass.

No. 36.

Supreme Court of North Carolina.

January 6, 1981.

Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for plaintiffs-appellants.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and Suzanne Reynolds, Greensboro, for defendant-appellee.

COPELAND, Justice.

The sole issue before us on this appeal is whether the evidence presented by plaintiffs at trial was sufficient to withstand defendant Douglass' motion for directed verdict. Since Judge Harry C. Martin's dissent was confined to that portion of the Court of Appeals' opinion which affirmed the entry of directed verdict in favor of defendant Douglass, we are not called upon to decide the propriety of the directed verdict entered for defendant Shaw. For the reasons stated below, we hold that the trial court erred in granting defendant Douglass' motion for directed verdict.

Plaintiffs alleged that defendant Douglass was negligent in failing to supervise the minor plaintiff in alighting from his vehicle, and in failing to instruct the child in crossing the street, in violation of his duty as the owner and operator of an automobile to exercise reasonable care to insure the safety of his invited passengers. Defendants denied plaintiffs' allegation of negligence and defendant Douglass contended that he had not duty to aid the minor plaintiff in crossing the street. The Court of Appeals agreed, holding that neither defendant was negligent as a matter of law.

It is well settled in North Carolina that the operator of an automobile has a duty to exercise that degree of care which a person of ordinary prudence would exercise under similar circumstances to prevent injury to the invited occupants of his vehicle. Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540 (1948); Boykin v. Bissette, 260 N.C. 295, 132 S.E.2d 616 (1963). See also Basnight v. Wilson, 245 N.C. 548, 96 S.E.2d 699 (1957); 7A Am.Jur.2d Automobiles and Highway Traffic § 535 (1980). Our research has revealed no North Carolina cases which involve the particular duty that an operator owes to passengers alighting from his vehicle. It is generally established that the operator must at least allow his passengers to unload in a safe place and may not stop his car in a manner likely to create a hazard to those alighting. Nelson v. Williams, 300 Minn. 143, 218 N.W.2d 471 (1974); Employers Liability Assurance Corp., Ltd. v. Smith, 322 S.W.2d 126 (Ky.1959); 7A Am.Jur.2d Automobiles and Highway Traffic § 572 (1980). See also Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389 (1950); Haskell v. Perkins, 16 Ill.App.2d 428, 148 N.E.2d 625 (1958). In defining defendant Douglass' duty to the minor plaintiff in this case, we may be guided by the decisions reached by other jurisdictions when presented with a similar factual situation, as compiled in Annot., 20 A.L.R. 2d 789 (1951). Although we may be guided by these decisions, we also acknowledge the general principle that each case turning upon such an allegation of negligence must be decided on its facts, and no one decision is dispositive of another.

Our determination in the case is also influenced by the rule that where the actions of children are at issue, the duty to exercise due care should be proportioned to the child's incapacity to adequately protect himself. Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602 (1943). As stated by Justice Parker, (later Chief Justice) speaking for our Court in Pavone v. Merion, 242 N.C. 594, 594, 89 S.E.2d 108, 108 (1955):

"A motorist must recognize that children, and particularly very young children, have less judgment and capacity to avoid danger than adults, that their excursions into a street may reasonably be anticipated, that very young children are innocent and helpless, and that children are entitled to a care in proportion to their incapacity to foresee and avoid peril."

Upon defendant's motion for directed verdict at the completion of plaintiffs' evidence, the trial court's task was to consider the evidence in the light most favorable to plaintiffs, resolving any discrepancies in the evidence in favor of plaintiffs, to determine whether there was sufficient evidence to submit the case to the jury. Williams v. Wachovia Bank & Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977). After viewing plaintiffs' evidence in this case in the light most favorable to them, we hold that plaintiff presented enough evidence to enable to jury to find that defendant breached his duty to unload his passengers in a safe place. Plaintiff's evidence indicates that defendant allowed the five-year-old plaintiff to exit from his car unattended, on a busy residential street after dark, knowing that it was necessary for the child to cross the street to reach his destination. Since Ms. Douglass, who had been responsible for the minor plaintiff before getting into the car, was seated in the back seat of defendant's two-door vehicle, defendant knew that she could not control the child as he alighted from the car. There were no cars parked on the north side of East Commerce Avenue directly in front of the Campbell home, therefore there was nothing to prevent defendant Douglass from turning around and parking next to the northern curb, thus avoiding the necessity for the children to cross the street. Considering these facts, we find that it was error for the trial court to grant defendant Douglass' motion for directed verdict and for the Court of Appeals to hold as a matter of law that Mr. Douglass had not breached any duty he might have owed to plaintiff.

Our conclusion is supported by the decision of the Minnesota Supreme Court in Nelson v. Williams, supra. In Nelson the defendant motorist was towing a boat on a four-lane highway when an object flew out of the boat and landed in the median separating the north and south bound lanes. He pulled his vehicle onto the right-hand shoulder of the road and allowed his eight-year-old son to cross two lanes of traffic to retrieve the object. The child was struck by a passing vehicle as he attempted to recross the highway. The Court held that the jury could reasonably find that the father failed to exercise the degree of car expected of a reasonably prudent person in the operation of his automobile, stating that:

"The decisive question is whether the evidence justifies the jury's inference that defendant ... in the use of his automobile failed to exercise that degree of care for the protection of his minor son that should be expected of a reasonably prudent person. In other words, could he have stopped and parked his car in such a way as to better protect his son as he left and was returning to the vehicle?" 300 Minn. at 148, 218 N.W.2d at 474.

Since defendant could have easily driven a short distance farther and stopped his vehicle in a place from which plaintiff could have reached the median without crossing the highway, the court held that the issue of defendant's negligence was properly submitted to the jury. Likewise, the jury in the case sub judice could have reasonably found that defendant Douglass breached his duty to unload his passengers in a safe place.

For the foregoing reasons, we find that the trial court erred in entering a directed verdict in favor of defendant Douglass. Accordingly, the Court of Appeals' decision affirming the directed verdict is reversed, and the case is remanded to the Superior Court, Guilford County, for a

NEW TRIAL.

BROCK, J., did not participate in the consideration or decision of this case.

CARLTON, Justice, concurring in result.

I concur in the result reached by the majority. I read the majority opinion to hold that a driver has a duty to discharge his passengers in a safe place and does not have a duty to supervise. My concern with the majority opinion is that its recitation of the evidence which establishes a prima facie case of negligence creates, I fear, an inference that a driver has the duty to stop in the safest place in relation to his passengers' destination. I concur in the result only insofar as it grants plaintiffs the opportunity to take their case to the jury on the theory enunciated by the majority. I would remand for a new trial with directions that the jury be allowed to consider only whether defendant breached his duty to unload his passengers in a safe place.