Fox v. . Barlow

Bbogden, J. Experience demonstrates that children of tender years in or about streets and highways are likely in obedience to impulse to run into or across such streets and highways suddenly and without *69 warning. Motorists must know and recognize this fact and govern themselves accordingly else the criminal and civil laws must be called upon to turn professor. However, in the case at bar, the child was standing on the shoulder of the highway, under the immediate control of the mother. She held him by the hand. She saw the approach of defendant’s car and stopped to wait for it to pass. Obviously it was near at hand. Suddenly the child jerked loose from the mother and started to run across the highway to meet his sister on the opposite side of the road. The defendant turned to the left and struck the child on the left hand side of the road, inflicting serious and permanent injuries. There was no evidence of the speed of the car immediately preceding the act of the child in running across the road. The road was straight for 600 or 800 feet. There is no evidence as to how close the car was when the child started across the highway except the evidence of defendant, who testified that the child jerked loose and started across the road when his car was not more than six or eight feet away. Such is the story told by the testimony. Actionable negligence is not presumed from the mere fact of injury, however unfortunate or severe the injury may be. So, in order to show an excessive speed the plaintiff invoked the principle that the accident occurred in a residential district. C. S., 2618(a) prescribes a speed of twenty miles per hour in a residential section and undertakes to define the residential section on highways by providing that “residential sections shall be construed to begin at the first point between which point and a point 1,000 feet away on said road or highway there are as many as eight residences.” C. S. section 2621(43) (t), defines residential district as “the territory contiguous to a highway not comprising a business district when the frontage on such highway for a distance of 300 feet or more is mainly occupied by dwellings or by dwellings and buildings in use for business.” The trial judge expressed doubt as to which of these antagonistic definitions should be adopted, but regardless of the conflict or of how much the statutes swear at each other, they have no bearing on this case. As we interpret the record, there is no definite evidence of the number of residences measured from the point of the collision or as to whether in a space of 300 feet the surface of the earth “is mainly occupied by dwellings or by dwellings and buildings in use for business.” While various measurements were submitted by several witnesses, the vital point is covered with fog and uncertainty. Moreover, there is no evidence that the speed of the car was the proximate cause of the injury. Consequently the motion for nonsuit should have been allowed. Reversed.