Plaintiff alleged, inter alia, that the feme defendant was negligent in driving the 1958 Plymouth station wagon in that she failed to keep a proper lookout in the direction she was traveling.
Defendants filed a joint answer denying any negligence on the part of the feme defendant in the operation of the station wagon, and conditionally pleading as a bar to plaintiff’s action contributory negligence of plaintiff’s intestate.
Plaintiff examined feme defendant as an adverse witness, and offered other evidence. Plaintiff’s evidence, when considered in the light most favorable to him, tends to show these facts:
About 3:40 o’clock p.m. on 16 February 1959 Mrs. Sarah Dupree, a school teacher, was driving a 1958 Plymouth station wagon on her right side of the road in a northerly direction on State Highway #55, traveling from the town of Coats to the town of Angier. The station wagon was owned by her husband, the male defendant, was registered in his name, and was maintained by him for his wife’s pleasure and convenience. Mrs. Hilda Rose Lee, Frances Hoclcadаy and Sheila Dupree, a daughter of defendants, were riding in the station wagon as passengers.
Highway #55, which has pavement 24 feet wide and dirt shoulders several feet wide on each side of the pavement, is straight for several hundred feet south of the place where the collision on the highway occurred. At or near the scene of the collision two dirt roads, one from thе east and one from the west, intersect the highway. The road intersecting the highway from the east is slightly south of the road that intersects the highway from the west. William Ragsdale, a registered civil engineеr and plaintiff’s witness, testified in respect to the dirt road from the west: It “is a path that leads from a dwelling house which lies on the west side of the road.* * *On the west side of the road there is an embankmеnt that projects up higher than the surface *143 on the road.” The dirt road that intersects the highway from the east is about 12 feet wide, goes down into the highway at a fairly steep angle, and has nо highway sign on it. There is an embankment on the east side of highway and south of the intersecting road on the east ten feet in height. According to measurements made by State Highway Patrolman Stuart Moore, the distance from the pavement to the embankment on the east side of the highway at or near the scene of the collision is 20 feet: it is 32 feet from the center line of the highway tо the embankment.
At and near the scene of the collision feme defendant was traveling on the highway at a speed of 40 to 45 miles an hour. It was open country, and the speed limit was 55 miles an hour. No other motor cars were near. She wаs looking straight ahead. She testified: “The first time I saw the child was when he shot in front of me. I swerved to keep from hitting the child. I am not sure if the bicycle was in front of me when I swerved. I saw the child as it shot, it seemed to drop from the heavens or somewhere. I do not know where, and I swerved. I saw the child for the first time when the child was in front of me and I swerved my car. I never did see the child on the side of the road or riding across the road. You could not see up that pathway 10 feet embankment. I did not see the child up there. I did not see the child on the hard surface peddling in front of me.” She аlso testified: “When I saw and struck the child it must have happened in a split second.” She did not apply her brakes after hitting the child. Her station wagon swerved to the left of the highway, went down the highway on its west side about 120 feet, and turned over in the ditch on the left side of the highway.
Patrolman Moore arrived at the scene shortly after the collision. On the west side of the highway, about 18 inches from the center line, he saw a scooped-out place at a point across from the right-hand ditch of the dirt road intersecting the highway from the east. The station wagon was turned over in the ditch on the west side of the highway 122 feet from the scooped-out place. He testified: “I found the bicycle on the west side of the road and the body of the deceased child lying in the ditch beside the station wagon.” He further testified: “She [feme defendant] advised that the child was in front of her. She saw it and in a flash she struck the child. She said the first time she saw the child, the child w-as in front of her, that she had nоt seen the child just a flash before she struck it.”
Cecil Mac Ennis was riding a 26” bicycle. When killed, he was eight years, eleven months old, lacking three days. Defendants admit in their answer Cecil Mac Ennis died as a result of the injuries which he received in the collision.
*144
The Court in
Dixon v. Lilly,
“Drivers or owners of motor vehiсles 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 fоr injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid injuring him.”
The fact that an automobile driver was driving at an unreasonable or dangеrous speed in violation of a statute or ordinance, or was operating the automobile without keeping a proper lookout, may deprive him of all right to escapе liability for striking a child which runs suddenly in front of his machine. There still remains the question whether the negligent driving of the automobile made it impossible for the driver of the car, under the circumstances then and there existing, to avoid the accident after seeing the child, or when in the exercise of proper care he could have seen the child, in time to avoid the injury.
Goss v. Williams,
See also
S. v. Gash,
*145
In
Wall v. Bain,
In
Tibbetts v. Harbach,
Feme defendant in the daytime was traveling 40 to 45 miles an hour along a State highway with pavement 24 feet wide and dirt shoulders on each side, and straight in the direction she was traveling for several hundred feet before the place of the collision. The scooped-out place on thе highway, 18 inches west of its center line, permits the reasonable inference that the child on his bicycle was struck ‘at that point. There was nothing to obstruct her view as she traveled along thе straight highway for several hundred feet before striking the child, and yet she did not see the child on his bicycle until “a split second” before she struck him, when, in her words, the child “shot in front of me* * * it seemed to drop from the heavens or somewhere.” Although the evidence does not disclose the direction in which the -child was riding his bicycle, or where he was a short time before he was struck, yet, in our oрinion, the evidence permits the inference that her failure to see the child on his bicycle riding on the highway, when she was some appreciable distance away from him, was due to her negligence in failing to keep a proper and adequate lookout.
This is a borderline case, but considering the evidence in the light most favorable to plaintiff, it is our opinion that it would permit, but not compel, a jury finding that the
feme
defendant was negligent in operating the station wagon without keeping a proper lookout, that such negligence made it impossible for hеr to avoid the collision with the child, when by the exercise of due care she could -and should have seen the child in time to avoid striking him, and that such negligence was the proximate cause of her striking the child, which caused injuries resulting in his death. The judgment of involuntary nonsuit of plaintiff’s action against
feme
defendant was imp-rovidently entered. Consequently, the court erred in nonsuiting plaintiff’s case аgainst the male defendant, the registered owner of the station wagon. G.S. 20-71.1 (b);
Hamilton v. McCash,
A compusory nonsuit on the ground that plaintiff’s intestate, an eight-year-old boy, was guilty of legal contributory negligence is not permissible, because of the rebuttable presumption that the eight-year-old boy was incapable of contributory negligence. Hamilton v. McCash, supra.
*146 We do not think defendants are entitled to have the nonsuit sustained on the ground of a fatal variance between allegata et 'probata. If plaintiff desires to amend his complaint to allege that the child was riding his bicycle in a westerly direction, he may make such a motion before the court below.
The judgment of compulsory nonsuit is
Reversed.