Brinson Ex Rel. Brinson v. Mabry

111 S.E.2d 540 (1959) 251 N.C. 435

Jewel Ray BRINSON by her next friend, Annie Dennis Brinson,
v.
Travis Dryman MABRY.

No. 465.

Supreme Court of North Carolina.

December 16, 1959.

D. D. Smith, Morton & Williams, Albemarle, for plaintiff, appellant.

Richard L. Brown, Jr., Albemarle, for defendant, appellee.

HIGGINS, Justice.

The only assignment of error presents for review the sufficiency of the evidence to survive the motion for nonsuit. In passing on this question we must evaluate the evidence in the light most favorable to the plaintiff. Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518; McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297; Simmons v. Rogers, 247 N.C. 340, 100 S.E. 2d 849; Chambers v. Edney, 247 N.C. 165, 100 S.E.2d 343.

We must take into account the fact that the plaintiff was a child seven years of age at the time of the accident. Pavone v. Merion, 242 N.C. 594, 89 S.E.2d 108; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343. However, at the time defendant saw, or should have seen her, she was standing in a path on the west side of the highway about three feet from its surface, accompanied by an older sister, then 10 or 11. They were in a place of safety. The defendant admitted in his answer that he was acquainted with conditions on and near the scene of the accident. He knew that pedestrians, including children, on occasion crossed the highway from the west to the church and to the store and filling station on the east. The scene of the accident was in a 55-mile speed zone for vehicles of the type driven by the defendant.

The testimony fails to disclose, and the physical evidence tends to disprove speed. The sister of the plaintiff, the only eyewitness, said Jewel ran out to the center of the highway immediately behind the vehicle going south which cut off her view of the approaching pickup driven by the defendant. "You couldn't see until it got right at you." Necessarily, the passing car likewise cut off the view of the defendant until an instant before the contact. The defendant's vehicle skidded the wheels a distance the plaintiff's eyewitness measured by holding up her hands about three feet apart. One wheel only ran over the plaintiff before the vehicle stopped. At all times the defendant's vehicle was in his proper lane of traffic. The plaintiff's sister testified: "I don't know whether I heard any horn blow. I could just hear the wheels." Thus the evidence fails to show the defendant had time to sound his horn.

The evidence presents this picture: Two girls, one seven and the other 10 or 11, were standing in a path on the west side of the highway unmarked as a place for pedestrians to cross, though the defendant knew that children and grownups used it for that purpose. Assuming the defendant saw the girls, or should have seen them, they were standing by the highway in a place of safety, apparently waiting for the traffic to pass. Two cars were going south. The defendant was going north. As soon as the last vehicle passed going south, the little girl broke away from her sister, ran into the highway to pick up a mat near the center, but at the sister's warning she darted to the east or opposite side into the path of the defendant's pickup. The evidence indicates the forward movement of the vehicle stopped after one wheel only ran over her. The character of the injuries, a broken leg and abrasions of the face and elbow, though serious enough, lend support to the physical evidence the pickup was almost stopped at the time of contact. The record fails to disclose evidence of speed or departure from the proper lane of traffic, or to indicate the girls would not continue to wait until the vehicular traffic, including defendant's pickup, had passed.

True, the presence of children on or near the traveled portion of a highway whom a driver sees, or should see, places him under the duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury. Washington v. Davis, 249 N.C. 65, 105 S.E.2d 202; Brunson v. Gainey, 245 N.C. 152, 95 S.E.2d 514; Pope v. Patterson, 243 N.C. 425, 90 S.E.2d 706; Barnes v. Caulbourne, 240 N.C. 721, 83 S.E.2d 898; Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488.

Nevertheless, when a child, without warning, darts from behind another vehicle into the path of a motorist who is observing the rules of the road with respect to speed, control, and traffic lanes, and who is maintaining a proper lookout, the resulting injury is not actionable. Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561; Bass v. Hocutt, 221 N.C. 218, 19 S.E.2d 871; Kennedy v. Lookadoo, 203 N.C. 650, 166 S.E. 752. In such event the cause should not be submitted to the jury. Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43.

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. Grant v. Royal, 250 N.C. 366, 108 S.E.2d 627; Sparks v. Willis, supra. Under the circumstances the defendant did all he was required to do, that is, to slow down and proceed with caution. Surely he was not required to stop completely so long as the girls remained off the hard surface and apparently attentive to traffic conditions.

Comparison of the facts in this case with those presented in Butler v. Allen, supra, declared by the Court to be a borderline case, will serve to illustrate wherein the facts now before us fail to make out a case for the jury.

For the reasons indicated, the judgment of compulsory nonsuit in the court below is

Affirmed.