McNeill v. Bullock

106 S.E.2d 509 (1959) 249 N.C. 416

Wilson J. McNEILL, Administrator of the Estate of Ricky McDougald,
v.
Avery BULLOCK.

No. 741.

Supreme Court of North Carolina.

January 14, 1959.

Britt, Campbell & Britt, Fairmont, for plaintiff.

Varser, McIntyre, Henry & Hedgpeth, Lumberton, for defendant.

PER CURIAM.

Even though a motor vehicle is operated on private property and away from a public highway or street, it is the duty of the operator thereof to exercise ordinary care to avoid injury to a child of tender years. 60 C.J.S. Motor Vehicles § 349(3), page 821.

In the instant case, however, there is no evidence tending to show that the defendant saw the plaintiff's intestate after the child went into the house for the purpose of being bathed. Did the defendant know the child had been called to come in the house to get his bath? If so, did the defendant know that the child had left the yard in response to such call? Since the record is silent in respect to such matters, and there is no evidence tending to show that the defendant knew the child was in the yard at the time he backed his car over the child, in our opinion the evidence is insufficient to establish actionable negligence on the part of the defendant.

The ruling of the court below in sustaining the defendant's motion for judgment as of nonsuit will be upheld.

Affirmed.