Badger v. Medley

138 S.E.2d 401 (1964) 262 N.C. 742

G. T. BADGER, Jr., Administrator of Erika Ingrid Hastings, Deceased,
v.
Pete MEDLEY.

No. 382.

Supreme Court of North Carolina.

November 4, 1964.

Bowie, Bowie & Vannoy, West Jefferson, for plaintiff.

John E. Hall, North Wilkesboro, for defendant, McElwee & Hall, North Wilkesboro, of counsel.

PER CURIAM.

There were no eyewitnesses other than defendant and deceased. Defendant did not see deceased until after the impact. Evidence is totally lacking as to speed; there is no showing that defendant knew children were customarily on or near the highway in this vicinity. There is no evidence that any other child was on or near the highway at the time of the accident. It may be inferred that defendant did not sound his horn, and there is evidence that he did not see the child before he struck her. Assuming that defendant failed to keep a reasonable lookout, there is not sufficient evidence from which it may be inferred that his inattention was a proximate cause of the accident and that in the exercise of reasonable care he might have avoided the accident. Ennis v. Dupree, 262 N.C. 224, 136 S.E.2d 702, and cases therein cited.

Affirmed.