(dissenting). The plaintiff, a child of five years, was struck and injured upon the public street by a passing automobile, operated by the defendant. The petition alleges that the collision and injury were caused bjr the negligence of the defendant. It appears without material dispute that the child was a pupil in a local school in West Union; that, in company with others, he left the sehoolhouse, and was on his way home, a distance of a few blocks. As he reached a street intersection and was about to cross, the defendant approached, with his car, from the opposite direction. Defendant saw the children, when about a block away, and they remained in plain view until the injury occurred. Of the immediate circumstances attending the accident, the defendant testified:
“I knew that children would ordinarily be found on that corner. T saw three boys when I was about half a block from the intersection of First Street South and Third Avenue South. When I first saw the Borland boy, lip was coming out, to the center of the street, going in a southerly direction. When I first saw him, he was two or three feet from the north curb. He then came out to the center of the street. He walked out, and I blew my horn. I was about one half a block away, at the time. The boy stood there for a few moments, and then walked back to the north side of the street. He went back to within five or six feet of the north curb, and just stood and looked at me. He just stood and'looked at me until I got within four feet of the sidewalk crossing, and then he started to run across the street to the south. I sawr them, the boys, down on these steps that *1154lead into First Street South, and as I remember, they were standing out near the curb.”
The testimony of other -witnesses seems to indicate that the lad, apparently unconscious of the danger in so doing, turned back, after attempting to cross in front of the ear, and was caught before he had cleared the roadway. The evidence as to the speed of the car is not very definite, but it appears to have passed the point of collision some 32 feet before it was brought to a stop. Of this situation defendant further testified, as follows:
“I put my chains on that day for the purpose of keeping the car from skidding. The streets had been icy several days before the accident. I knew that, if I applied the brakes suddenly, the car would skid. I knew that, when I approached the corner and saw the children, that, if I tried to stop suddenly, my ear would skid, and I wouldn’t be able to stop my ear as soon as if I were on dry pavement. If the pavement had been dry, I wouldn’t have traveled over six feet. ’ ’
The principal argument advanced for a reversal is that the evidence is insufficient to justify a finding of negligence on the part of defendant. It may be conceded that the case is a close one; but in our judgment, it cannot be said, as a matter of law, that the evidence fails to sustain the charge of negligence. The right of the child to use the street in going to and from the school is no less sacred than the right of the defendant to operate his car thereon. The driver of a car through a public thoroughfare, and especially in the heart of a town or city, and in places where children congregate, is charged with the exercise of care reasonably proportioned to the danger to which such children are exposed. It i§ not to be expected that young and inexperienced children will exercise the judgment and forethought of persons of maturer age, and it is a matter of common knowledge and observation that they are liable to scurry across the roadway in front of a moving vehicle with the thoughtlessness of a flock of chickens. In this case, defendant not only knew that children were ordinarily found at that particular corner, but he had the children, including the plaintiff, actually in view for a block, as he approached them. He did approach them at a speed rendering it difficult for him to stop at once, and we think it a *1155fairly open question for the jury to say Avhether, exercising the proper measure of care, he could have avoided the collision. The driver of a car is, of course, not to be regarded as an insurer against all accidents, and for an injury which is purely accidental, unmixed with negligence on his part, there is no liability; but the present case does not appear to fall within that class. There was no error in the court’s refusal to direct a verdict.
Aside from the proposition that the evidence was insufficient to sustain a recovery, the assignments of error are, for the most part, too general to call for any special discussion, as they all inhere in the subject already treated. It is said, among other things, that the court submitted to the jury questions of alleged negligence on which there Avas no evidence. The court’s charge states the case substantially- as found in the pleadings, and we discover nothing in the statement for which there is not support in the record. No sufficient reason, in my opinion, is shown for disturbing the judgment below.
Preston, C. J., joins in the dissent.