Moore Ex Rel. Moore v. Powell

ClaeksoN, J. At the close of plaintiff’s evidence, and at the close of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. We think there was sufficient competent evidence to be submitted to the jury. Upon a motion as of nonsuit all the evidence, whether offered by the plaintiff or elicited from the defendant’s witnesses, is to be considered in the light most favorable to the plaintiff and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom. The charge of the court below is not in the record, and the presumption of law is that the learned judge charged the jury correctly the law applicable to the facts. The law of the road — C. S., 2616, is in part: “Upon approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway or a curve, or a corner in a highway where the operator’s view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling.” 0. S., 2618, provides: “No person shall operate a motor vehicle upon the public highways of this State recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highway, or so as to endanger the property or the life or limb of any person,” etc. In S. v. Gray, 180 N. C., 697 (701), speaking to the subject: “The vigilance and care required of the operator of an automobile vary in respect to persons of different ages and physical conditions. He must increase his exertions in order to avoid danger to children, whom he may see, or by the exercise of reasonable care should see, on or near *639 -tbe highway. More than ordinary care is required in such, cases. Deputy v. Kimmell, 80 S. E. (W. Va.), 919; 8 N. & C. Cases, 369. Moving quietly, as an automobile does, without the noise which accompanies the movement of a street car or other ordinary heavy vehicle, it is necessary that caution should be continuously exercised'to avoid collision with pedestrians unaware of its approach. The speed should be limited, warnings of approach given, and skill and care in its management so exercised as to anticipate such collisions as the nature of the machine and the locality might suggest as liable to occur in the absence of such precautions. Berry on Automobiles, sec. 124; Huddy on Automobiles (4 ed.), sec. 214. In S. v. Gash, supra (177 N. C., 598), the court below charged the jury: ‘If the defendant was operating the car lawfully and at the rate of speed permitted by law, yet if by reason of a failure to keep a proper lookout he failed to see the deceased in time to avoid injuring him, and “by reason of his carelessness and negligence in failing to keep this lookout” he caused the death of the child, he was guilty.’ The Court held that in this charge there was no error.” In Goss v. Williams, 196 N. C., 213 (221-2), the following able charge of Judge Sinclair, in the court below was sustained: “You are instructed that even though the injured party through his own negligence placed himself in a position of peril he may recover if the one who injured him discovered, or by the exercise of ordinary care could have discovered him in time to have avoided the injury. The defendant would not be relieved of liability by reason of the fact that he did not see him, but the law holds him to the responsibility of seeing what he could have seen by keeping a reasonably vigilant and proper lookout. You are instructed that the mere fact that a child runs in front of a moving vehicle so suddenly that the driver had no notice of danger, does not necessarily relieve the defendant from liability. There still remains the question whether the negligent driving of the automobile made it impossible for the driver to avoid the accident after seeing the child, or when by the exercise of reasonable care, such driver could have seen the child in time to avoid the injury, there being a greater degree of watchfulness and care required of automobile drivers as to. children than adults.” This charge correctly states the humane doctrine. In Davies v. Mann, 10 M. & W., 546, Shirley’s Leading Cases in the Common Law (3d English Edition), p. 269, we find: “The owner of a donkey fettered its forefeet, and in that helpless condition turned it into a narrow lane. The animal had not disported itself there very long when a heavy wagon belonging to the defendant came rumbling along. It was going a great deal too fast, and was not being properly looked after by its driver; the consequence was that it caught the poor *640 beast, wbicb could not get out of tbe way, and killed it. Tbe owner of tbe donkey now brought an action against tbe owner of tbe wagon, and, in spite of bis own stupidity, was allowed to recover, on tbe ground that if the driver of the wagon had been decently careful the consequences of the plaintiffs negligence tvoulct have been averted“How much then is a man better than a sheep.” Matthew 12, part v. 12. Is a donkey better than a child? The question answers itself. In the judgment of tbe court below, we find No error.