Anderson v. Smith

223 S.E.2d 402 (1976)

29 N.C. App. 72

Troy ANDERSON, Administrator of the Estate of William Russell Anderson, Deceased v. Addie Edwards SMITH.

No. 753SC677.

Court of Appeals of North Carolina.

April 7, 1976.

*404 James, Hite, Cavendish & Blount by Robert D. Rouse, III, Greenville, for plaintiff-appellant.

Gaylord, Singleton & McNally by Louis W. Gaylord, Jr., and Phillip R. Dixon, Greenville, for defendant-appellee.

PARKER, Judge.

Plaintiff first assigns an error that the court failed to charge the jury in accordance with plaintiff's request for instructions as to the duty the law imposes upon a motorist who sees, or by the exercise of reasonable care should see, children on or near the highway. Although the court did not instruct the jury in the exact language requested, plaintiff concedes that the court gave similar instructions, and comparison reveals that the instructions given were in essence those requested. A litigant is not entitled to have the trial judge instruct the jury in the exact words formulated by the litigant, Key v. Welding Supplies, Inc., 5 N.C.App. 654, 169 S.E.2d 27 (1969), "it being sufficient if the pertinent and applicable instructions requested are given substantially in the charge." 7 Strong, N.C. Index 2nd, Trial § 38, p. 348. This was done in the present case.

In the present case the court instructed the jury as follows:

"A motorist who sees or by the exercise of reasonable care should see a child on or near the highway, must recognize that children have less discretion than do grown personsadultsand that they may sometimes run into the road or across the path of the motorist. Therefore, under our law, due care requires the motorist to maintain a vigilant outlook to give a timely warning of his approach, and to drive at such speed and in such a manner that he or she can control the vehicle, if a child or in the event a child, in obedience to some childish impulse, should attempt to cross the road or highway in front of the vehicle."

This instruction contains the substance of the instruction requested by the plaintiff and is a correct formulation of the applicable law as long established in this State. "It has long been the rule 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 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.'" Winters v. Burch, 284 N.C. 205, 209, 200 S.E.2d 55, 57 (1973). We find no merit in plaintiff's first assignment of error.

Plaintiff's second assignment of error, based on his Exceptions 7 and 8, calls in question two portions of the court's charge to the jury. In the portion which is the subject of Exception No. 7, the court instructed the jury in substance that whether a motorist acted as a reasonably careful and prudent person would act is a factual question to be determined in the light of all relevant circumstances, including "whether the child came quickly into or darted out from a place of concealment or some place *405 in which he was not easily seen." In the portion of the charge which is the subject of Exception No. 8, the court instructed the jury as follows:

"Accordingly, if a driver is proceeding along a highway in a lawful manner, using ordinary and reasonable caution for the safety of others, including children, that motorist will not be held liable for striking a child whose presence on the highway could not reasonably be foreseen. Under ordinary circumstances, a motorist is not required to anticipate the appearance of a child in the pathway of the motorist from behind a parked vehicle or other obstructions, so suddenly that he cannot stop or otherwise avoid injuring the child."

Plaintiff contends that although such instructions might be proper in a typical "darting child" case in which a motorist had no other warning before the child suddenly appeared in his path, the giving of such instructions in this case constituted prejudicial error. He points to the evidence in this case that other children were present in the vicinity and that defendant acknowledged she had seen these children while she was yet 200 feet distant from the point where she struck the child. Plaintiff maintains that the presence of these other children in this case placed defendant under a greater than normal duty of care and that by their presence she was already on notice to anticipate unexpected movements by some child in the area. He also points to defendant's testimony that she had seen the child's head and back as he was "crawling" from the ditch as further distinguishing this from the typical "darting child" situation.

We find no error in the court's giving the instructions which are the subject of plaintiff's Exceptions 7 and 8. The evidence shows that the other children referred to were on the south side of the road, defendant's left side as she traveled westwardly on the highway. The evidence was that these children were in the yard of the house and there was no evidence they were on the shoulder of the road or close to the pavement. There was no evidence that they were moving toward the road. On the contrary, there was evidence that they were "standing quietly". The child who was struck suddenly emerged from the partially obscured ditch on the right-hand side of the road. Defendant first saw the child coming from the ditch on her right when she was only 100 feet away, and there was no evidence she could have seen him any earlier. There was evidence that when she first saw the children on her left she was traveling 40 miles per hour, well within the speed limit. At that speed her car was moving just over 58 feet per second. Even if, as she testified, she took her foot from the accelerator and began to slow down as soon as she saw the children in the yard, there would have been only approximately two seconds time elapse before she traveled the additional 100 feet to the point where she could first see the child emerging from the ditch. Thus there was evidence in this case from which the jury could find that the child came from behind an obstruction and moved onto the road in front of defendant's oncoming automobile so suddenly that defendant could not stop or otherwise avoid injuring the child. In our opinion the instructions given by the court to which plaintiff now excepts, when read contextually with the remainder of the charge, correctly applied the law arising on the evidence in this case. See: Allen v. Foreman, 18 N.C.App. 383, 197 S.E.2d 32 (1973). Plaintiff's second assignment of error is overruled.

Plaintiff's third and fourth assignments of error are directed to the court's refusal to grant his motions for a directed verdict on the first issue of negligence and for judgment notwithstanding the verdict. Plaintiff contends these rulings were error "on the basis that defendant, by her own testimony, specifically testified that she saw small children on or near the highway at a distance of 200 feet and from such time that she first observed small children, she failed to give a timely warning of her approach *406 by sounding her horn." We do not agree. In the first place, defendant did not testify that she saw small children on the highway; she testified that she saw them "on the left of the road, in the yard of Mrs. Anderson's house." There was other evidence which placed these children in the yard of the house at distances from 21 to 30 feet from the highway, and there was no evidence that any child other than the child who was killed was on the highway at the time defendant's car was approaching. Defendant's testimony that she did not sound her horn merely provided the jury with an additional circumstance to be evaluated by them in determining whether defendant was guilty of any negligence which was the proximate cause of the child's death. Clearly, the evidence here was not such as to require a directed verdict in favor of the plaintiff, who carried the burden of proof. We find no error in denial of plaintiff's motions for a directed verdict or for judgment notwithstanding the verdict on the first issue.

Finally, plaintiff contends the court erred in nor setting aside the verdict as being contrary to the weight of the evidence. "A motion to set aside the verdict as being contrary to the greater weight of the evidence is addressed to the discretion of the trial court, and its ruling thereon will not be reviewed in the absence of a showing of abuse." Chalmers v. Womack, 269 N.C. 433, 437, 152 S.E.2d 505, 508 (1967). No abuse of discretion has been shown.

No Error.

HEDRICK and ARNOLD, JJ., concur.