Waycaster v. Sparks

147 S.E.2d 535 (1966)

267 N.C. 87

J. C. WAYCASTER, Administrator of R. J. Waycaster, v. Ed SPARKS.

No. 355.

Supreme Court of North Carolina.

April 13, 1966.

*537 Warren H. Pritchard, Spruce Pine, and G. D. Bailey, Burnsville, for plaintiff.

Clarence N. Gilbert, Asheville, for defendant.

PER CURIAM.

In reviewing a judgment of nonsuit we are required to consider the evidence in the light most favorable to the plaintiff, accept the evidence so construed as true, and disregard all evidence in conflict therewith, including any inconsistencies or contradictions in the plaintiff's evidence. Thomas v. Morgan, 262 N.C. 292, 136 S.E.2d 700; White v. Roach, 261 N.C. 371, 134 S.E.2d 651; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338.

A motorist must operate his vehicle with the care which would be used by a reasonable man who saw what the defendant saw or could have seen. The presence of a seven year old child at or near the edge of the pavement of a highway is, itself, a danger signal to an approaching motorist. A nonsuit may not be granted upon the basis of contributory negligence by a child of that age.

Interpreted in accordance with the above mentioned rule, the evidence offered by the plaintiff was sufficient to require the submission of the case to the jury. In so ruling we do not, of couse, suggest either that the evidence was true or that it presents the entire factual situation. These are questions for the jury to determine.

Since the case must go back to the Superior Court for another trial, it is not necessary for us on this appeal to consider the assignments of error relating to the admission of evidence. They may not arise on the second trial.

Reversed.

MOORE, J., not sitting.