Pavone v. Merion

89 S.E.2d 108 (1955)

242 N.C. 594

Shonle Lou PAVONE by her next friend John A. Pavone v. Betty Joyner MERION.

No. 100.

Supreme Court of North Carolina.

September 21, 1955.

C. R. Wheatly, Jr., Beaufort, for plaintiff, appellant.

Hamilton & McNeill, Morehead City, for defendant, appellee.

PARKER, Justice.

It is well settled law in North Carolina that a legal duty rests upon a motorist to exercise due care to avoid injuring children when he sees, or by the exercise of reasonable care should see, on or near the highway. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Moore v. Powell, 205 N.C. 636, 172 S.E. 327; Goss v. Williams, 196 N.C. 213, 145 S.E. 169.

A motorist must recognize that children, and particularly very young children, have less judgment and capacity to avoid danger than adults, that their excursions into a street may reasonably be anticipated, that very young children are innocent and helpless, and that children are entitled to a care in proportion to their incapacity to foresee and avoid peril. Greene v. Mitchell County Board of Education, 237 N.C. 336, 75 S.E.2d 129; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602.

"Experience demonstrates that children of tender years in or about streets and highways are likely in obedience to impulse to run into or across such streets and highways suddenly and without warning. Motorists must know and recognize this fact and govern themselves accordingly, else the criminal and civil laws must *109 be called upon to turn professor." Fox v. Barlow, 206 N.C. 66, 173 S.E. 43, 45. In other words, due care may require a motorist in a certain situation to anticipate that a child of tender years unmindful of danger will dart into a street in front of an approaching automobile. Hughes v. Thayer, supra.

Bearing in mind these applicable principles of law, we are of opinion, after a careful study of the evidence, that the plaintiff has made out a case for submission to a jury. We have refrained from stating the evidence to avoid any prejudice to the rights of the parties, when the case is submitted to the twelve.

The judgment of nonsuit is

Reversed.

WINBORNE and HIGGINS, JJ., took no part in the consideration or decision of this case.