Johns v. Day

127 S.E.2d 543 (1962)

257 N.C. 751

Ronnie Ray JOHNS, by his Next Friend, Ralph E. Earney v. Ransom J. DAY.

No. 170.

Supreme Court of North Carolina.

October 10, 1962.

*545 Childers & Fowler, Mt. Holly, for appellant.

Hollowell & Stott, Gastonia, for appellee.

DENNY, Chief Justice.

The sole question presented for decision on this appeal is whether or not the trial judge committed error in sustaining the defendant's motion for judgment as of nonsuit at the close of plaintiff's evidence.

The evidence tends to show that while the defendant did not see the plaintiff before the left front wheel of his car had passed over the legs of plaintiff, the evidence further tends to show that the plaintiff, a child six years of age at the time of the accident, ran out into the street in front of the car parked in front of his home and into the pathway of defendant's car. The evidence further supports the view that the defendant at the time of the accident was traveling about five miles per hour, going in between the cars parked on the north and south sides of the street. The undisputed evidence is to the effect that the defendant stopped his car within one foot of the point where the left front wheel of his car passed over the legs of the plaintiff. Moreover, the evidence tends to show that the defendant's car did not travel more than six or seven feet after the plaintiff ran into the pathway of defendant's car.

"No presumption of negligence arises from the mere fact there has been an accident and an injury." Grant v. Royal, 250 N.C. 366, 108 S.E.2d 627; Fleming v. Twiggs, 244 N.C. 666, 94 S.E.2d 821; Merrell v. Kindley, 244 N.C. 118, 92 S.E.2d 671; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661.

In the case of Brinson v. Mabry, 251 N.C. 435, 111 S.E.2d 540, this Court said: "True, 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 (citing numerous authorities).

"Nevertheless, when a child, without warning, darts from behind another vehicle into the path of a motorist who is observing the rules of the road with respect to speed, control, and traffic lanes, and who is maintaining a proper lookout, the resulting injury is not actionable. * * *"

Ordinarily, when a child suddenly runs into the street from behind a parked vehicle or other obstruction, thereby preventing the child from being seen in time to have avoided the accident, and the driver was not traveling at an excessive rate of speed, nonsuit is proper. Kennedy v. Lookadoo, 203 N.C. 650, 166 S.E. 752; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43; Bass v. Hocutt, 221 N.C. 218, 19 S.E.2d 871.

Likewise, in Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329, the evidence was *546 to the effect that the defendant backed his truck into an alley and ran over a four-year-old child. This Court held that the absence of a showing of the length of time that the child was in the alley, or that the defendant could or should have seen him in time to avoid the injury, led only to conjecture as to whether the child was there long enough to be seen or whether he dashed suddenly into the path of the truck. The evidence presenting such conjecture was held insufficient to be submitted to the jury. The judgment of nonsuit entered below was upheld. See also Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406.

The judgment below is

Affirmed.

SHARP, J., took no part in the consideration or decision of this case.