Brewer v. Green , 254 N.C. 615 ( 1961 )

119 S.E.2d 610 (1961) 254 N.C. 615

Mrs. Della Mae BREWER, Administratrix of the Estate of Norma Caroline Brewer, Deceased,
v.
Elmer E. GREEN and Mary Watson.

No. 319.

Supreme Court of North Carolina.

May 3, 1961.

Fate J. Beal, Lenoir, for plaintiff-appellant.

Townsend & Todd, Lenoir, for defendants-appellees.

DENNY, Justice.

The plaintiff assigns as error the ruling of the court below sustaining the defendants' motion for judgment as of nonsuit at the close of the plaintiff's evidence.

We must consider the evidence in the light most favorable to the plaintiff in passing on a motion for judgment as of nonsuit. Brinson v. Mabry, 251 N.C. 435, 111 S.E.2d 540. But when such evidence is so considered, and in the opinion of the Court it is insufficient to support the plaintiff's allegations of actionable negligence, a judgment as of nonsuit should be upheld.

According to the evidence, the four minor children were standing on the east side of the highway, apparently waiting for traffic to clear; a car passed them going south. All three of the children who remained on the side of the road testified that they saw the car operated by the minor defendant coming from the south. Plaintiff's intestate, according to the evidence, ran into the road about the time the car was even with where the children were standing. The evidence further tends to show that as the car approached the point where the children were standing by the road in a place of safety, the little six and one-half year old child ran into the highway and was hit by the right front of the car. There is no evidence of excessive speed; neither is there any evidence that would tend to show that the child ran into the highway a sufficient length of time ahead of the approaching car for the driver thereof to have taken any effective measures to avoid the accident.

The plaintiff contends that the minor defendant was operating the car on the left side of the highway and that plaintiff's intestate was struck about the center of the road by the right front of the car with such force that she was carried some distance along the highway. The evidence revealed by the record supports the view that the child had reached about the center of the road when she was struck by the right front of the car just inside the right front headlight and that she was carried some distance along the highway on the bumper of the car.

However, in light of all the evidence in this case, in our opinion the fact that the driver of the automobile was driving the car at the time of the impact near the center of the highway rather than on the extreme right thereof, is not sufficient in itself to establish actionable negligence. The driver of the car may have instinctively pulled the car to the left in an effort to avoid hitting the child when she ran into the highway from the right-hand side of the road. There is evidence tending to support such an inference.

The appellant cites the case of Carter v. Shelton, 253 N.C. 558, 117 S.E.2d 391, in support of her contention that the plaintiff's evidence was sufficient to take the case to the jury. The facts in that case are clearly distinguishable from those in the present case.

The case of Brinson v. Mabry, supra, would seem to be controlling on the facts in this case. In the Brinson case, as here, there was no evidence of excessive speed. Higgins, J., in speaking for the Court, said: "In this case the children were not on the traveled portion of the highway. They were apparently waiting for vehicular traffic to clear before attempting to cross. The defendant saw nothing to give notice to the contrary until the little girl darted out from behind another vehicle in front of him, leaving insufficient time to take evasive action." [251 N.C. 435, 111 S.E.2d 543.] Cf. Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561. There is no presumption of negligence from the mere fact that there has been an accident and an injury. Grant v. Royal, 250 N.C. 366, 108 S.E.2d 627; Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; Merrell v. Kindley, 244 N.C. 118, 92 S.E.2d 671.

In our opinion, the evidence adduced in the trial below is insufficient to establish actionable negligence on the part of the driver of the automobile involved in this accident. Therefore, the judgment as of nonsuit entered below is

Affirmed.

PARKER, J., dissents.