Carter v. Shelton

Denny, J. The sole question for determination on this appeal is whether or not the court below committed error in sustaining the defendant’s motion for judgment as of nonsuit. In considering the evidence adduced in the trial below, in con'■nection with the motion for nonsuit, the plaintiff is entitled to have such evidence considered in the light most favorable to her and she is likewise entitled to the benefit of every reasonable inference to be drawn therefrom. Pierce v. Insurance Co., 240 N.C. 567, 83 S.E. 2d 493; Transport Co. v. Insurance Co., 236 N.C. 534, 73 S.E. 2d 481; Hat Shops v. Insurance Co., 234 N.C. 698, 68 S.E. 2d 824; Winfield v. Smith, 230 N.C. 392, 53 S.E. 2d 251. In the case of Wise v. Lodge, 247 N.C. 250, 100 S.E. 2d 677, the evidence tended to show that the defendant was driving her car at a speed of approximately 35 to 40 miles per hour on a highway covered with ice and snow. The defendant’s car skidded to the left into the car of plaintiff, which was being driven in its proper lane in the opposite direction. This Court, speaking through Parker, J., said: “Viewing the evidence in the light most favorable to the plaintiff, as we are required to do on a motion for judgment of nonsuit, it permits the legitimate inference that the skidding of defendants’ automobile was caused by her failing to exercise due care in the operation of her automobile commensurate with the known and obvious dangerous condition of the highway, in that she was driving it without chains on a highway covered with ice at a speed of approximately 35 to 40 miles an hour, that such speed was greater than was reasonable and proper under the conditions then existing, and that [561] she in the exercise of reasonable care might have foreseen that the ice on the highway and the speed of her automobile without chains made the skidding of her automobile probable, and that from such skidding consequences of a generally injurious nature might be expected.” In Hollingsworth v. Burns, 210 N.C. 40, 185 S.E. 476, the plaintiff was 12 years of age and was engaged with other boys in a childish game, on roller skates, on or near a connecting street which was ordinarily not much used. In the excitment of play, the plaintiff skated down an inclined driveway, leading into the street, with such speed that he was carried out into the street and. was . struck by defendant’s truck, which was being operated at an excessive speed, on the wrong side of the road, and without sounding the horn. On appeal by the defendant from a verdict in favor of plaintiff, this Court held that the case was properly submitted to the jury on the issues of negligence, contributory negligence and damages. This Court has cited with approval many times the case of Rolin v. Tobacco Co., 141 N.C. 300, 53 S.E. 891, 7 L.R.A. (N.S.) 335, 8 Ann. Cas., 638, in which opinion it is said: “Within certain ages, courts hold children incapable of contributory negligence. We do not find any case, nor do we think it sound doctrine, to say that a child of 12 years comes within that class. Adopting the standard of the law in respect to criminal liability, we think that a child under 12 years of age is presumed to be incapable of so understanding and appreciating danger from the negligent act, or conditions produced by others, as to make him guilty of contributory negligence.” Of course, this presumption is a rebuttable one. See Walston v. Greene, 247 N.C. 693, 102 S.E. 2d 124, where the cases on this subject are assembled and discussed in an exhaustive opinion by Parker, J. The appeal before us presents an extremely close case. However, when the slick and icy condition of the road is considered, together with the speed the defendant’s automobile was being operated under the conditions then existing, and the further fact that the defendant at the time of the collision was operating his car on the left side of the highway, in our opinion, it is a case for the jury, with proper instructions on the issues of negligence, contributory negligence and damages. Reversed.