Greene v. Mitchell County Board of Education

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75 S.E.2d 129 (1953)

237 N.C. 336


No. 239.

Supreme Court of North Carolina.

March 18, 1953.

*130 W. E. Anglin, Burlington, for plaintiff appellee.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, and Charles G. Powell, Jr., and Gerald F. White, of Staff, Raleigh, for defendant appellant.

BARNHILL, Justice.

Ch. 1059, Session Laws 1951 (codified as General Statutes Ch. 143, art. 31, supplement of 1951) provides for the payment of damages for personal injuries sustained by any person "as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted." Recovery by any one claimant is limited to $8,000, including medical and other expenses. G.S. § 143-291.

The Industrial Commission is vested with jurisdiction to hear claims arising under the Act, and its findings of fact are conclusive if there is any competent evidence to support them. G.S. § 143-293.

*131 While defendants in their application for a review by the full Commission of the award made by the hearing commissioner assigned certain errors on the part of the hearing commissioner, they neither excepted to nor assigned error in the award made by the full Commission. Neither did they except to the award entered. They were content to give written notice of their appeal to the Superior Court.

At the hearing in the court below they, through counsel, moved to remand for "(1) A specific hearing (sic) as to the specific acts of negligence complained of; (2) a finding as to where Norma Lee Greene, deceased, was standing at the time of the bus' departure, and how long she had been standing there, and (3) whether she was in a position to have been seen by the driver of the bus." They likewise moved for judgment of nonsuit and excepted to the refusal of the court to interrupt the hearing and send for the court reporter so that they might, at that time, enter exceptions to specific findings of fact and conclusions of law of the Industrial Commission. They likewise moved the court to strike the Commission's finding of fact No. 9. The appeal to this Court is based on the exceptions to the rulings of the court below made on these motions entered at the hearing.

Since the appeal of the defendants from the Industrial Commission to the Superior Court was unsupported by any exception, it amounted to nothing more than a general exception to the decision and award of the Commission. It was insufficient to challenge the sufficiency of the evidence to support the findings of fact of the Commission or any one of them. It carried up for review in the Superior Court the single question whether the facts found by the Commission support the decision and award. Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421.

The facts found by the Commission are fully supported by the evidence and are therefore, under the terms of the statute, binding on us. G.S. § 143-293.They sustain the conclusion of the Commission that the death of plaintiff's intestate was proximately caused by the negligence of an employee of defendants, State agencies, in the course of his employment, and the award was within the limit prescribed by statute. G.S. § 143-291.

We have repeatedly held that the presence of children on or near a highway is a warning signal to a motorist. He must recognize that children have less capacity to shun danger than adults; are more prone to act on impulse, regardless of the attendant peril; and are lacking in full appreciation of danger which would be quite apparent to a mature person. When, therefore, he sees, or by the exercise of due care should see, that children are on the highway, he must immediately bring his vehicle under control and, in the exercise of ordinary care, proceed in such manner and at such speed as is reasonably calculated to enable him to avoid striking such child or children. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Edwards v. Cross, 233 N.C. 354, 64 S.E.2d 6; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602; Smith v. Miller, 209 N.C. 170, 183 S.E. 370; Moore v. Powell, 205 N.C. 636, 172 S.E. 327.

This duty to exercise a high degree of caution in order to meet the standard of care required of a motorist, Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L. R. 999, when he sees or by the exercise of ordinary care should see children on a highway applies with peculiar emphasis to the operator of a school bus transporting children to their homes after school. His passengers are in his care and he knows that many of them must cross the road after they alight from the bus. It is his duty to see that those who do alight are in places of safety before he again puts his vehicle in motion.

The rules adopted by the N. C. Board of Education governing public school transportation as they relate to the operation of school buses expressly provide that the driver of a school bus must "supervise the activities of children discharged from the *132 bus until they have crossed the highway in safety or are otherwise out of danger" and "shall not start the school bus until pupils are seen to be out of danger." Rules, Regulations and Laws Governing Public School Transportation in North Carolina, p. 19, G.S. § 115-19.

Here five children got off the bus at the same time and place. Three of them had to cross over to the left side of the road to get to their homes. Ordinarily the bus remained stationary until they had reached the path or road which led to their homes. On this occasion the bus driver "pulled out" as soon as the last child had alighted. "The little girl's brother hadn't started more than a step or two in front of the bus, and he pulled off. We didn't have a chance to go. I didn't make more than one step until he pulled out." He "drove away in a hasty manner while simultaneously closing the bus door." Just as soon as the bus moved off, the deceased was found near the center of the road, mortally injured. No other vehicle had passed.

Certainly this and the other evidence in the record will supportindeed compels the inference that the bus collided with the little girl and inflicted the injury which caused her death. It is apparent it "sideswiped" her as it moved off.

It is equally clear that the unfortunate occurrence was proximately caused by the negligence of the bus driver. If he had merely taken time to glance to his left he could have ascertained that the little girl had not crossed the road. He says he did look but did not see her. If so, this put him on notice that she was still somewhere about his bus, out of his sight. Yet he made no effort to ascertain her whereabouts before he put his bus in motion. Such lack of due care toward a child of tender age under the circumstances leaves defendants in poor position to contest the issue of negligence.

So far as this record discloses, there was no testimony of any conduct on the part of deceased which evidenced any want of due care on her part. Hence we need not discuss or decide whether a child of her age could by her conduct bar her right of recovery.

The motion to strike paragraph 9 of the findings of fact is without merit. It is true this paragraph incorporates a conclusion of law with findings of fact. Yet the facts therein found as well as the conclusion of law are essential to a final determination of the rights of the parties and we find ourselves in full accord with the contents thereof. The findings of fact therein contained are supported by the evidence and the conclusion is a correct statement of the law.

Likewise the motion to remand for further findings is untenable. The Commission found all the essential facts. While it did not find just where the child was standing when she was struck by the bus or just what part of the bus struck her or whether she was in a position to be seen by the bus driver, these are, on this record, mere minor details which have no substantial bearing on the issues of fact the Commission was required to answer. Negligence here does not rest on the fact the bus driver, by the exercise of ordinary care, could have seen the child in a position of peril in time to stop and avoid colliding with her. It lies in the fact that he, having discharged the children from the bus, failed to exercise proper care to ascertain that they and each of them "had crossed the highway in safety" or were "otherwise out of danger." Hence the cases cited and relied on by defendants are not in point.

If the defendants desired to enter exceptions to the findings of fact made by the Commission, they should have been filed prior to the hearing in the Superior Court. Whether the judge should interrupt the hearing and call in the court reporter, at that late date, "so that specific exceptions could be taken to specific findings of fact and conclusions of law of the Industrial Commission" rested in his sound discretion. Therefore, the denial of the motion of defendants cannot be held for prejudicial error. Fox v. Mills, Inc., 225 N.C. 580, 35 S.E.2d 869.

For the reasons stated the judgment entered in the court below is


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