Daniels v. Johnson

212 S.E.2d 245 (1975)

25 N.C. App. 68

Lorenzo Bobby DANIELS, by his next friend, Pauline Daniels Goodson v. Sarah Ford JOHNSON and Norwood Rigdon Johnson.

No. 7410SC1009.

Court of Appeals of North Carolina.

March 5, 1975.

*246 Hatch, Little, Bunn, Jones, Few & Berry by John N. McClain, Jr. and David H. Permar, Raleigh, for plaintiff-appellant.

Ragsdale & Liggett by George R. Ragsdale, Raleigh, for defendant-appellee.

HEDRICK, Judge.

Defendant's motion for a directed verdict at the close of plaintiff's evidence presents the question whether the evidence, when considered in the light most favorable to the plaintiff, is sufficient to justify a verdict in his favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). It is well-settled in this State that the presence of children on or near a highway is a warning signal to a motorist, who must bear in mind that children have less capacity to shun danger than adults and that they 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." Brinson v. Mabry, 251 N.C. 435, 438, 111 S.E.2d 540, 543 (1959).

However, no presumption of actionable 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. Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610 (1961). There must be some evidence that the motorist could have avoided the accident by the exercise of reasonable care under the circumstances. Until the driver has notice of the presence or likelihood of children near his line of travel, the rule as to the degree of care to be exercised with respect to children is the same as it is with respect to adults. 4 Blashfield, Automobile Law and Practice, (3d Ed.1965) § 151.11.

Taking as true the minor plaintiff's testimony that there were no vehicles on the street blocking his view to the north along S. East Street, it can be reasonably inferred that the defendant approaching along S. East Street from the north could have seen the plaintiff sometime during his passage from the east side of the street to the point where he was struck near the center of the southbound lane. However, when and where the plaintiff became visible to the defendant would depend on just where she was in relation to the plaintiff while he was trotting the twenty-seven feet from the east side of the street to where he was struck by the defendant's automobile.

There is no evidence in this record whatsoever as to where the defendant was at any particular time until she apparently applied her brakes five feet before striking the plaintiff. Thus, the evidence adduced at the trial does not provide the answer to *247 the crucial question in the case, that is, whether defendant, in the exercise of due care, could have seen the plaintiff in sufficient time to anticipate his collision course and to have taken effective measures to avoid striking him. Left to speculation is where the defendant was when she saw or by the exercise of reasonable care should have seen the plaintiff.

The plaintiff not only had the burden of offering evidence of defendant's negligence, he also had the burden of offering evidence that the defendant's negligence was at least one of the proximate causes of the injury. Assuming that the defendant failed to keep a proper lookout, there is not sufficient evidence from which it may be inferred that her inattention was a proximate cause of the accident and that in the exercise of reasonable care she might have avoided it. See Winters v. Burch, 284 N.C. 205, 200 S.E.2d 55 (1973), Badger v. Medley, 262 N.C. 742, 138 S.E.2d 401 (1964).

We hold that the evidence in this case fails to establish actionable negligence on the part of defendant. Her motion for a directed verdict, therefore, was properly allowed.

The judgment appealed from is

Affirmed.

BROCK, C. J., and CLARK, J., concur.