Robert Lee HARRIS and Ernest A. Turner, Admrs. of the Estate of Emmit Alston, Jr.
v.
Robert WRIGHT and John Calvin Upchurch.
No. 458.
Supreme Court of North Carolina.
December 14, 1966.*564 Clayton & Ballance, Warrenton, and Mitchell & Murphy, Raleigh, for plaintiffs.
Teague, Johnson & Patterson and Joseph E. Johnson, Raleigh, for defendants.
*565 BRANCH, Justice.
The motion for judgment as of nonsuit could not have been allowed on the basis of contributory negligence on the part of plaintiffs' intestate, since a nine-year-old boy is rebuttably presumed incapable of contributory negligence. Hamilton v. McCash, 257 N.C. 611, 127 S.E.2d 214. Therefore, we must determine if there was sufficient evidence of actionable negligence on the part of defendants to withstand the motion for involuntary nonsuit.
Plaintiffs in their complaint allege that the defendant Wright was negligent in that (1) he operated the motor vehicle in a careless and reckless manner, (2) he failed to keep and maintain his vehicle under control, (3) he operated the same with unsafe equipment, to-wit faulty brakes, (4) he operated the vehicle at a rate of speed in excess of that warranted by conditions and surrounding circumstances, (5) he gave no warning to said minor that he was about to move his vehicle, either by sounding his horn or other audible signal, and (6) he maintained barrels on the rear of the truck, which made it impossible for him to see to his rear.
It is not negligence per se to back a car upon a highway. Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384. In discussing requirements for prudent operation while backing a motor vehicle, this Court in the case of Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, stated: "The requirements of prudent operation are not necessarily satisfied when a defendant `looks' either preceding or during the operation of his car. It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen. * * * `It is his positive duty to look backward for approaching vehicles and to give them timely warning of his intention to back, when a reasonable necessity for it exists; and he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway. * * *'" (Italics ours)
The evidence offered in the instant case shows that defendant Wright looked back before he put the truck in motion and continued to look backward in his direction of travel until the child was injured.
The plaintiffs offered evidence which would tend to show that there were barrels on the rear of the truck which prevented the defendant Wright from seeing through the rear window of the truck. We would not hold that the mere fact that Wright could not see through the back window of the truck would, in itself, convict him of negligence in backing the truck, when he took reasonable precautions before so doing by looking to the right, left and backward. To so hold would be to ignore the accepted principles of negligence, particularly proximate cause. Further, it is common knowledge that many modern trucks and tractor-trailer combinations do not have rear windows, and such a holding would make every operator of such vehicles negligent as a matter of law when he backed the vehicle.
Plaintiffs offered no other evidence to sustain the allegations of their complaint, except as to the allegation that defendant Wright gave no warning to the said minor that he was about to move his vehicle, either by sounding his horn or other audible signal. There is conflict in plaintiffs' evidence as to whether a verbal warning of his intention to move the vehicle was given by defendant, and on motion for involuntary nonsuit the conflict in evidence would be considered in the light most favorable to the plaintiff. Brewer v. Green, 254 N.C. 615, 119 S.E.2d 610. However, the purpose of sounding a warning is to put a person on notice and to keep him from being taken by surprise. All of the evidence shows that plaintiffs' intestate was not injured by a sudden movement of the motor vehicle or *566 because of any lack of warning. To the contrary, the evidence reveals that after the truck began to slowly move, the plaintiffs' intestate left a place of safety and tried to jump on the rear of the truck. Unless the child was injured because of absence of signal or warning, it is plain under recognized principles of law that a verdict could not be founded on this omission.
"In an action for recovery of damages for wrongful death, resulting from alleged actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff's intestate under the circumstances in which they were placed; and Second, that such negligent breach of duty was the proximate cause of the injury which produced the death, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Murray v. Atlantic Coast Line R.R., [218 N.C. 392, 11 S.E.2d 326], supra; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; White v. Chappell, 219 N.C. 652, 14 S.E.2d 843, and cases cited." Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.
We are advertent to the principle that a motorist must recognize that children have less judgment and capacity to appreciate and avoid danger than adults, and that children are entitled to a care in proportion to their capacity to foresee, to appreciate and to avoid peril. Pope v. Patterson, 243 N.C. 425, 90 S.E.2d 706. However, considering the evidence in the light most favorable to the plaintiffs, it is our opinion that the evidence adduced in the trial below is insufficient to establish actionable negligence on the part of the defendants. The judgment of nonsuit entered below is
Affirmed.