(Dissenting)
I am unable to agree with the result reached in the opinion. Because I feel that the decision of the court will have far reaching consequences with relation to the duty of motorists to children on sidewalks and in yards adjacent to streets, some explanation of the reasons which prompt a contrary view may be helpful.
Where the evidence is without selective application as between two factual theories, on one of which the defendant is free of any negligence, the jury may not be permitted to conjecture, surmise or speculate as to what may have occurred. Jordan v. Portland Coach Co., 150 Me. 149. A mere scintilla of evidence will not suffice to take the case to the jury. Beaulieu v. Portland Co., 48 Me. 291, 296. Is there more than a scintilla here? The justice below concluded that there was not and I am satisfied that his ruling was correct. What is the evidence? An alleged admission by the defendant made to a police officer after the accident contains the following:
“(R. 83) * * * two little girls had started to cross the street but one had turned back and the other one had ran (sic) across the street * *
But where, we may properly ask, did this turning back take place? On the sidewalk, or in an adjacent yard, or in *114the gutter between parked cars, or in the street in front of defendant’s car? We are not told. If the plaintiff “turned back,” where did she go and how far did she travel away from possible danger? And where was the defendant’s car when the turning back occurred with relation to the plaintiff? The evidence is silent. Quite significantly, perhaps, neither of the disinterested eye witnesses presented by the plaintiff observed that either child “turned back.” One recalled only that the plaintiff “came out of the yard” while the other had the plaintiff standing concealed from the defendant between two parked cars. Neither gave any testimony suggesting that the defendant was afforded any opportunity whatever in a very brief time sequence to avert the collision.
Two facts are not disputed — that there were cars parked along the side of the street from which the plaintiff emerged, and that the defendant was proceeding very slowly. It is apparently conceded that the only thing the defendant did not do was to stop his car. The court must be of the opinion that the defendant had a duty to stop, since there is no other possible basis for a jury finding of negligence. But is the mere presence of children in the area sufficient to raise a duty to stop, or must there be more? If the motorist must stop and wait because children are nearby and may run into the street in front of his car, how long must he remain stopped before proceeding ahead? Or may the operator proceed slowly and with caution as this defendant did? Our court has clearly held that a motorist need not anticipate that children will suddenly and without warning dart from between parked vehicles directly into the path and under the wheels of an automobile. Bernstein v. Carmichael, 146 Me. 446. Where, as here, the evidence fails to show, either directly or by reasonable inference, either where the plaintiff was or where the defendant was with relation to each other at any given moment *115or that the latter had any reasonable opportunity to stop his car and thereby avert the collision, a verdict should be directed. The jury should not be permitted to guess.
In my view the opinion of the court makes the motorist an insurer of the safety of small children who may be near enough to the traveled portion of a street to be able, suddenly and without warning, to dart in front of his car in such proximity as to make a collision inevitable. I would overrule the exceptions.