Wilson ex rel. Keiger v. Gardner

CAMPBELL, Judge. The plaintiff’s evidence shows without contradiction that the plaintiff was on the curb and then fell into the rear of the moving truck. The evidence is undisputed that the defendant Gardner had determined before moving the truck that both sides of the truck were clear and that it was safe to move. Although some of the group of children were still in the vicinity, the driver had no duty to wait until all the children had left before he could move the truck. His duty was to exercise reasonable care to determine that the movement could be made in safety. The evidence shows that he took reasonable precaution to avoid any injury. We feel that the proper rule of law to apply in this case is that followed in Westbrook v. Robinson, 11 N.C. App. 315, 181 S.E. 2d 231 (1971) : A motorist operating his vehicle at a lawful speed is not liable for injuries to a child who runs into the street so suddenly that the motorist could not avoid striking him. And this is the rule even where the motorist was aware at the time of the presence of children on the sidewalk along the street. No error. Judges Britt and Baley concur.