Boyd Ex Rel. Deane v. Blake

159 S.E.2d 256 (1968) 1 N.C. App. 20

Claudia BOYD, by her Next Friend Charles B. Deane, Jr.
v.
Virginia Dare BLAKE.

No. 67SC10.

Court of Appeals of North Carolina.

February 21, 1968.

Pittman, Pittman & Pittman, Rockingham, for plaintiff appellant.

Leath, Bynum, Blount & Hinson, Rockingham, for defendant appellee.

BRITT, Judge.

Although defendant in her answer pleads contributory negligence on the part of plaintiff and the doctrine of "sudden appearance," defendant's counsel with his usual candor admits that neither of these is applicable to the facts in this case. Therefore, the only question presented by this appeal is whether there was sufficient evidence of actionable negligence on the part of defendant to be considered by the jury.

In reviewing a judgment of nonsuit, we are required to consider the evidence in the light most favorable to the plaintiff, accept the evidence so construed as true, and disregard all evidence in conflict therewith, including any inconsistencies or contradictions in the plaintiff's evidence. Waycaster v. Sparks, 267 N.C. 87, 147 S.E.2d 535; Thomas v. Morgan, 262 N.C. 292, 136 S.E.2d 700; White v. Roach, 261 N.C. 371, 134 S.E.2d 651.

In Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579, in an opinion written by Bobbitt, J., we read:

"The only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. § 1-183. In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiffs or by defendant, must be considered in the light most favorable to plaintiffs. Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541; Eason v. Grimsley, 255 N.C. 494, 496, 121 S.E.2d 885. True, the court may consider evidence offered by defendant that `tends to clarify or explain evidence offered by plaintiff not inconsistent therewith, but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by plaintiff. (Citations) Otherwise, consideration would not be in the light most favorable to plaintiff. (Citations)' Watters v. Parrish, 252 N.C. 787, 795, 115 S.E.2d 1."

The cases in our reports involving small children struck by automobiles upon the streets and highways are as varied in their factual situations as are the impulses and instantaneous reactions of children. Consequently, they vary in ultimate results. While the principles of law concerning the care required of a motorist who sees, or ought to see, a small child on or near the highway are constant, their application is difficult because the facts vary from case to case. Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806.

The very presence of a five-year-old child riding a bicycle on the highway is, in itself, a danger signal to a motorist approaching the child. Ordinarily, it is a question for the jury as to whether the motorist has responded to such danger signal as a reasonable person would have done. Champion v. Waller, 268 N.C. 426, 150 S.E.2d 783. Rodgers v. Carter, supra.

It has been declared repeatedly by our Supreme Court that a legal duty rests upon a motorist to exercise due care to avoid injuring children whom he sees, or by the exercise of reasonable care should see, on or near the highway. A motorist must recognize that children have less judgment and capacity to appreciate and avoid danger than adults, and that children are entitled to a care in proportion to their incapacity to foresee, to appreciate and to avoid peril. Parker, J., (now C. J.) in Pope v. Patterson, 243 N.C. 425, 90 S.E.2d 706 (citing numerous authorities).

"Where an automobile driver sees a child in a place of danger, or has reason to apprehend that it might run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision." Quoted in Pope v. Patterson, supra, from Lucas v. Bushko, 314 Pa. 310, 171 A. 460.

Plaintiff was on the paved portion of the highway and clearly visible to defendant at all times while she traveled a distance of 1000 feet. It was to be anticipated that plaintiff might be inattentive to danger, and, upon the near approach of a vehicle, might allow her bicycle to veer to the opposite side of the highway. [See Henderson v. Locklear, 260 N.C. 582, 133 S.E.2d 164]. Plaintiff did not suddenly dart from a place of concealment into the path of defendant's vehicle as was the case in Johns v. Day, 257 N.C. 751, 127 S.E.2d 543, and Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426. She was not in a place of apparent safety when seen by the motorist as was the case in Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610, and Brinson v. Mabry, 251 N.C. 435, 111 S.E.2d 540.

Plaintiff's witness Nicholson "guessed" the speed of defendant's car. The term "guess" is not regarded as being a mere conjecture or speculation but as a colloquial way of expressing an estimate or opinion. It is a word frequently used where a witness is called upon to make estimates of speed or distance or size or time. Like the words "suppose" or "think", it is commonly used as meaning the expression of a judgment with the implication of uncertainty. State v. Clayton, 272 N.C. 377, 158 S.E.2d 557.

In the light of duty of the motorist in such circumstance, the questions whether the defendant in the instant case was driving her vehicle at a greater speed than was reasonable and prudent, or whether she decreased speed to the extent that an ordinarily prudent person would have done, are for jury determination. Henderson v. Locklear, supra.

The judgment below is

Reversed.

MALLARD, C. J., and BROCK, J., concur.