Phillips ex rel. Schultz v. Holland

421 S.E.2d 608, 107 N.C. App. 688, 1992 N.C. App. LEXIS 801
CourtCourt of Appeals of North Carolina
DecidedOctober 20, 1992
DocketNo. 9119SC765
StatusPublished
Cited by2 cases

This text of 421 S.E.2d 608 (Phillips ex rel. Schultz v. Holland) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips ex rel. Schultz v. Holland, 421 S.E.2d 608, 107 N.C. App. 688, 1992 N.C. App. LEXIS 801 (N.C. Ct. App. 1992).

Opinions

WYNN, Judge.

Plaintiffs, David Andrew Phillips by his guardian ad litem, Richard B. Schultz, and Beverly Phillips brought this action to recover for injuries allegedly caused by the negligence of defendant, Lorrie S. Holland. Plaintiff Beverly Phillips, parent of the minor plaintiff, seeks recovery for expenses she has allegedly incurred or will incur because of the injuries sustained by the minor plaintiff when he was struck by a motor vehicle operated by defendant.

Plaintiff’s evidence offered at trial tends to show the following:

Allison Street runs north and south in Concord, North Carolina and is approximately thirty feet wide. Cannon Avenue runs east and west and intersects with Allison Street at the top of a hill. The speed limit is thirty-five miles per hour on both streets.

On September 21, 1987 at about 7:38 a.m., plaintiff Beverly Phillips drove her six year old son, David, two blocks south from their home on Allison Street to the intersection of Cannon Avenue and Allison Street to drop him off for school. Mrs. Phillips stopped her Pontiac Bonneville a short distance north of the intersection to let David out. He got out on the passenger’s side and walked to the rear of the car to cross the street.

Defendant, Lorrie Holland, drove her Chevrolet Camaro in a northerly direction on Allison Street at twenty-five to thirty miles per hour. She was taking three children to school. As defendant crested the hill at the intersection of Allison Street and Cannon Avenue, she first saw the plaintiff David Phillips “running” in [690]*690an easterly direction in the southbound lane of Allison Street. Approximately five to ten seconds passed from the time defendant first saw the minor plaintiff to the time of impact. The collision occurred in the middle of the street approximately forty-five feet from the northeast corner of the intersection of Cannon and Allison. Plaintiff was struck by the left front quarter panel of defendant’s car. Defendant did not blow her horn because she “did not have time.”

There were fifty-four feet of skid marks prior to the impact and defendant’s car traveled about an additional twenty-five feet after the collision before coming to a stop. The trial court took judicial notice that the distance traveled by a vehicle at twenty-five miles per hour is 36.9 feet per second; and at thirty miles per hour, 44 feet per second.

Following the close of plaintiffs’ evidence, the trial judge granted defendant’s motion for a directed verdict on the ground that “the evidence presented by plaintiffs, when considered in the light most favorable to the plaintiffs, is insufficient to permit a finding by the jury that any act or omission on the part of the defendant proximately caused any injury or damage to the plaintiffs.” Plaintiffs appealed.

Appellants contend that the trial court erred in allowing the defendant’s motion for directed verdict in that the evidence presented by plaintiffs was sufficient to present a prima facie case of negligence to the jury. We agree.

It is well established that a defendant’s motion for directed verdict under G.S. § 1A-1, Rule 50(a) of the Rules of Civil Procedure tests the legal sufficiency of the evidence to take the case to the jury and support a verdict for the plaintiff. Manganello v. Permastone, Inc., 291 N.C. 666, 670, 231 S.E.2d 678, 680 (1977). On defendant’s motion for a directed verdict, plaintiff’s evidence must be taken as true and considered in the light most favorable to the plaintiff, giving the plaintiff the benefit of every reasonable inference which may legitimately be drawn from the evidence. Id. A directed verdict is improper unless, as a matter of law, a recovery cannot be had by the plaintiff upon any view of the facts which the evidence reasonably tends to establish. Id.; Koonce v. May, 59 N.C. App. 633, 634, 298 S.E.2d 69, 71 (1982). If there is even a scintilla of evidence to support plaintiff’s prima facie case such that reasonable minds could differ as to whether the plaintiff is [691]*691entitled to recover, the motion should be denied and the case should go to the jury. Wallace v. Evans, 60 N.C. App. 145, 146, 298 S.E.2d 193, 194 (1982); Broyhill v. Coppage, 79 N.C. App. 221, 226, 339 S.E.2d 32, 36 (1986). Thus our inquiry is whether the evidence presented by plaintiffs would support a jury finding of negligence on the part of defendant.

Generally, every motorist is under a duty to exercise due care to avoid colliding with pedestrians on a roadway and to exercise proper precaution upon observing any child upon a roadway. N.C. Gen. Stat. § 20-174(e) (1991). Such duty of care requires the motorist to keep a proper lookout, i.e., to look in the direction of travel, to see what is there to be seen. Troy v. Todd, 68 N.C. App. 63, 66, 313 S.E.2d 896, 898 (1984). In recognizing the often impulsive nature of children, the North Carolina Supreme Court and this Court have held that a driver is not, however, the insurer of the safety of children in the street and is not bound to anticipate the sudden appearance of children in his pathway. Winters v. Burch, 284 N.C. 205, 210, 200 S.E.2d 55, 58 (1973); Daniels v. Johnson, 25 N.C. App. 68, 70, 212 S.E.2d 245, 246 (1975). Thus, no presumption of negligence arises from the mere fact that a motorist strikes and injures a child who darts into the street or highway in the path of her approaching vehicle. Rather there must be some evidence that the motorist could have avoided the accident by the exercise of reasonable care under the circumstances. Winters, 284 N.C. at 210, 200 S.E.2d at 58; Daniels, 25 N.C. App. at 70, 212 S.E.2d at 246.

The cases involving injuries to children by motor vehicles are numerous. In Koonce v. May, 59 N.C. App. 633, 298 S.E.2d 69 (1982), this Court thoroughly reviewed those cases dealing specifically with “darting children.” Based on that review, it concluded that the jury could reasonably have found that the defendant, by maintaining a proper lookout, could have observed the plaintiff in time and avoided the collision. This conclusion arose from evidence showing that when the seven year old plaintiff entered the street on his “Green Machine” tricycle, his playmates saw the defendant approaching from sixty feet away at a speed of between fifteen and twenty miles per hour. The court distinguished Koonce from the “typical ‘darting child’ case,” because there was “evidence from which the jury could have concluded that plaintiff was in the street for a sufficient length of time to give the defendant an opportunity to exercise due care to avoid colliding with him.” Id. at 637, 298 S.E.2d at 73.

[692]*692Similarly, in Wallace v. Evans, 60 N.C. App. 145, 298 S.E.2d 193

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421 S.E.2d 608, 107 N.C. App. 688, 1992 N.C. App. LEXIS 801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-ex-rel-schultz-v-holland-ncctapp-1992.