Jackson ex rel. Jackson v. Fowler

WEBB, Judge. We reverse the judgment of the superior court. The statement of the law applicable to this case has been made many times by the Supreme Court of North Carolina and by this Court. It is as follows: “. . . the presence of children on or near a highway is a warning signal to a motorist, who must bear in mind that they have less capacity to shun danger than adults and are prone to act on impulse. Therefore, ‘the presence of children on or near the traveled portion of a highway whom a driver sees, or should see, places him under the duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury.’ * * * However, no presumption of negligence arises from the mere fact that a motorist strikes and injures a child who darts into the street or highway in the path of his approaching vehicle. * * * ‘A motorist is not, however, an insurer of the safety of children in the street or highway; nor is he bound to anticipate the sudden appearance of children in his pathway under ordinary circumstances. Accordingly, the mere occurrence of a collision between a motor vehicle and a minor on the street does not of itself establish the driver’s negligence; and some evidence justifying men of ordinary reason and fairness in saying that the driver could have avoided the accident in the exercise of reasonable care must be shown. In the absence of such a situation, until an automobile driver has notice of presence or likelihood of children near line of travel, the rule as to the degree of care to be exercised as to children is the same as it is with respect to adults.’ ” Winters v. Burch, 284 N.C. 205, 209-10, 200 S.E. 2d 55, 58-9 (1973). [198] Applying the law to this case the question is whether under the evidence the jury could find from the evidence that the defendant should have seen the plaintiff playing in the yard and moving toward and into the road so as to bring his vehicle under such control as to have avoided the collision. We conclude that from the evidence offered in this case, the jury could so find. The evidence is that the plaintiff was playing in his yard under a tree 49 feet from the center of this road. He ran from that spot to the center of the road while the defendant was approaching. There was evidence that there were obstructions such as a hedge, a soybean field, and a pole blocking the defendant’s view of the yard in which the plaintiff was playing, and that the road was at a lower level than the yard. There was also evidence that the hedge, the soybean field and the pole should not have blocked defendant’s view and that the seat of the truck which defendant was driving was high enough above the ground so that the defendant could see into the plaintiff’s yard. We hold that it is a question for the jury whether the defendant should have seen plaintiff running toward the road and brought his truck to a halt so as to avoid the collision. The defendant relies on Daniels v. Johnson, 25 N.C. App. 68, 212 S.E. 2d 245 (1975). That was a case in which the Court affirmed the granting of defendant’s motion for directed verdict after the defendant’s vehicle had struck a minor plaintiff who was running across the street. The Court held there was not sufficient evidence as to where the defendant was when she could have first seen the plaintiff. In this case there is evidence that the defendant was on RPR 1300 approaching the point of collision when the plaintiff ran the 49 feet from the point in his yard to the place where the accident occurred. We believe this distinguishes this case from Daniels. New trial. Chief Judge BROCK and Judge CLARK concur.