Misenheimer ex rel. Misenheimer v. Carter

Higgins, J. Was the evidence sufficient to present a jury question? Stated in the alternative, was the evidence so deficient in probative value as to require the court, as a matter of law, to hold that a legitimate inference of defendant’s actionable negligence is not permissible? Lake v. Express Co., 249 N.C. 410, 106 S.E. 2d 518; Ward v. Smith, 223 N.C. 141, 25 S.E. 2d 463. The collision occurred as the defendant drove north on the old Salisbury road. Michael Eddins, age 9, riding a bicycle, entered the road from a private driveway. The plaintiff, Charles Lee (Chuck) Misen-heimer, was behind Michael on the bicycle. The driveway was some [206] what obscured by a rock wall and shrubbery. The boys came into the road and attempted to join Lowell Eddins, age 8, who had just preceded them across the road on his bicycle. The defendant’s Chevrolet collided with the bicycle on which the boys were riding, about the center of the road. Lowell Eddins testified he rode his bicycle down the drive to the highway, motioned by waving his hand to the boys on the following bicycle “to come on.. .” I did not see a oar at the time I got to the place where the driveway comes in to the road. I looked.” Michael Eddins testified: “I was coming down the driveway slow. ... I did not see the car before it hit the bicycle and I was almost half way across . . . when the car hit the bicycle. I was sitting on the seat . .. and Chuck (Charles Lee Misenheimer) was behind me. Lowell was in front of me and I saw him wave. Pie was in the road when he waved.” The defendant testified: “I first saw the first bicycle that entered the road when I was back up the road about 100 feet, I guess. I saw the second bicycle . . . when I was about 50 feet. ... At the time the second bicycle was struck, the front of it was probably on the left side of the center of -the highway and the rear on the right side, about the center of the road. . . . There was no other traffic.” The defendant was thoroughly familiar with the road and the driveway. The evidence permits the inference the defendant could have seen Lowell Eddins give a “come on” signal which should have been notice that another child or children would probably enter the highway and attempt to cross. According to the defendant’s own version, he saw the second bicycle for a distance of 50 feet before the collision. By his own admission, the point of impact was at or near the center of the road. Why he did not veer to his right and avoid contact does not appear. The width of his unobstructed driving lane and the width of the shoulder to the right would seem to offer driving room which would enable him to avoid striking the bicycle if he were properly attentive to his duties. Apparently he did not change his course until he pulled partially off on the shoulder beyond the point of collision. Inference of driver negligence causing the injury is permissible. This was sufficient to take the case to the jury. Walker v. Byrd, 258 N.C. 62; Hamilton v. McCash, 257 N.C. 611, 127 S.E. 2d 214; Cassetta v. Compton, 256 N.C. 71, 123 S.E. 2d 222; Simmons v. Rogers, 247 N.C. 340, 100 S.E. 2d 849; Chambers v. Edney, 247 N.C. 165, 100 S.E. 2d 343; Murray v. Wyatt, 245 N.C. 123, 95 S.E. 2d 541; Greene v. Mitchell County Board of Education, 237 N.C. 336, 75 S.E. 2d 129. Review of the record fails to disclose error of law. No error.