Dixon v. Lilly

125 S.E.2d 426 (1962)

257 N.C. 228

Benson DIXON, a minor without general or testamentary guardian, appearing herein by his duly appointed next friend, Mildred S. Dixon, v. Fred Page LILLY, Jr.

No. 527.

Supreme Court of North Carolina.

May 23, 1962.

*428 Richard L. Brown, Jr., D. D. Smith, Albemarle, for defendant-appellant.

Charles H. Dorsett, Troy, for plaintiff-appellee.

DENNY, Chief Justice.

The sole question for decision on this appeal is whether or not the court below erred in failing to sustain the defendant's motion for judgment as of nonsuit.

The plaintiff alleged in his complaint that the "defendant failed to sound a horn or to use any other warning device or to give any adequate or timely signal or warning to this plaintiff of the defendant's approach, or intended course * * *." However, plaintiff did not allege that the defendant's truck was being operated without lights.

Moreover, there is no evidence tending to show that the defendant was operating his truck at an excessive rate of speed or that the defendant lost control of his truck and struck the plaintiff while he was walking along the shoulder of the road, as alleged in the complaint.

The plaintiff's evidence clearly establishes the fact that the contact between the truck and the boy occurred on the paved portion of the road and the tire or skid marks on the pavement after the collision tended to show that the driver of the truck pulled his truck to the left in an effort to avoid colliding with the plaintiff, instead *429 of swerving his truck to the right as alleged in the complaint. Mrs. Norman testified: "He (the plaintiff) was in my yard at the time I first saw him running. * * * (W)hen he started to run, he just run right on, right straight ahead, and the truck hit him." The testimony of this witness and that of the plaintiff fixed the point of collision on the paved portion of the road.

The evidence discloses that after the collision there were two dents in the right front fender of the truck, one on the right side of the fender just back of the right front headlight, and the other on the lower part of the fender just above the right front wheel.

We think the plaintiff's own testimony supports the conclusion that he ran onto the paved portion of the road and against the right front fender of the truck.

In our opinion, the evidence disclosed on the record is sufficient to exonerate the defendant from liability under the "sudden appearance doctrine," or that, insofar as the defendant is concerned, the plaintiff was injured as the result of an unavoidable accidentdeplorable as it isfor which the defendant may not be held liable for damages. Knott v. Kinston Transit Co., 231 N.C. 715, 58 S.E.2d 696; Blashfield, Cyclopedia of Automobile Law and Practice (Perm.Ed.), Vol. 2A, Section 1498. Cf. Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280.

The above citation in Blashfield says: "Drivers or owners of motor vehicles are not insurers against all accidents wherein children are injured. Accordingly, a driver proceeding along a street or highway in a lawful manner using ordinary and reasonable caution for the safety of others, including children, will not be held liable for striking a child whose presence in the street could not reasonably be foreseen. He is not required to anticipate the appearance of children in his pathway, under ordinary circumstances, from behind parked automobiles or other obstructions.

"Thus, when a motor vehicle is proceeding upon a street at a lawful speed, and is obeying all the requirements of the law of the road and all the regulations for the operation of such machine, the driver is not generally liable for injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid injuring him."

Taking all the evidence into consideration in the light most favorable to the plaintiff, and giving him the benefit of every reasonable inference to be drawn therefrom, we are unable to agree that it is sufficient to establish actionable negligence on the part of the defendant. Kennedy v. Lookadoo, 203 N.C. 650, 166 S.E. 752; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Knott v. Kinston Transit Co., supra; Brinson v. Mabry, 251 N.C. 435, 111 S.E.2d 540; Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610; Henkelmann v. Metropolitan Life Ins. Co., 180 Md. 591, 26 A.2d 418.

The judgment of the court below is

Reversed.