Yokeley v. . Kearns

DeviN, J. Tbe only question presented by tbis appeal is whether tbe plaintiff’s evidence considered in tbe light most favorable for him was of sufficient probative force to require its submission to tbe jury. Wall v. Bain, 222 N. C., 315. Was there evidence of negligence on tbe part of tbe defendant which proximately caused tbe injury and death of plaintiff’s intestate? An examination of tbe record of tbe testimony offered below leads us to tbe conclusion that tbe question posed must be answered in tbe affirmative. Giving due consideration to tbe facts in evidence and to tbe inferences of fact reasonably deducible therefrom, we think tbe plaintiff was entitled to have tbe jury determine whether under tbe circumstances, and at tbe time and place described, tbe defendant failed to exercise tbe degree of care incumbent upon one who operates a motor vehicle upon a public street, and whether such failure was tbe proximate cause of tbe injury complained of. A generally recognized principle of human conduct, in relation to those to whom tbe duty of reasonable care to avoid injury is owed, requires that tbe one charged with such duty should exercise that degree of care and forethought which is commensurate with tbe dangers reasonably to be anticipated. Calhoun v. Light Co., 216 N. C., 256, 4 S. E. (2d), 858. In accord with tbis principle, when one drives an automobile on a public street and sees, or by tbe exercise of due care should see, small children on or near tbe traveled portion of tbe street and apparently intending to cross, it is bis duty to use proper care with respect' to the speed and control of bis automobile, tbe giving of timely warning *199 and the maintenance of vigilant outlook, to avoid injury, recognizing the likelihood of their running into or across the street in obedience to childish impulses. Moore v. Powell, 205 N. C., 636, 172 S. E., 327; Fox v. Barlow, 206 N. C., 66, 173 S. E., 43; Smith v. Miller, 209 N. C., 170, 183 S. E., 370; 5 Am. Jur., 613; 67 A. L. R., 317 (note). The destructive result of the collision would tend to indicate excessive speed. Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88. It was said in S. v. Gray, 180 N. C., 697 (710), 104 S. E., 647: “He must increase his exertion in order to avoid danger to children whom he may see, or by the exercise of reasonable care should see, on or near the highway.” Under such circumstances due care should be proportioned to the child’s incapacity adequately to protect himself. 38 Am. Jur., 685. We think the evidence here adds up to something more than what was held insufficient as merely speculative and conjectural under the facts in Mitchell v. Melts, 220 N. C., 793, 18 S. E. (2d), 406; Pack v. Auman, 220 N. C., 704, 18 S. E. (2d), 247; and Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661. See also Bass v. Hocutt, 221 N. C., 218, 19 S. E. (2d), 871. As this case goes back for trial, we refrain from further discussion of the evidence. It will be understood, however, that in holding plaintiff’s evidence sufficient to carry the case to the jury we express no opinion as to its weight. The defendant’s evidence may throw a different light on the unfortunate occurrence. The judgment of nonsuit is Reversed.