Adkins v. Carter , 40 N.C. App. 258 ( 1979 )

VAUGHN, Judge.

Plaintiff contends that the court erred in granting defendant’s motion for a directed verdict. Upon defendant’s motion for a directed verdict, the evidence must be taken as true and reviewed in the light most favorable to the plaintiff. Adler v. Lumber Mutual Fire Insurance Co., 280 N.C. 146, 185 S.E. 2d 144 (1971). “When so considered, the motion should be allowed if, as a matter of law, .the evidence is insufficient to justify a verdict for the plaintiff.” Adler v. Lumber Mutual Fire Insurance Co., supra, at 148. Taking the evidence in the light most favorable to the plaintiff, we believe he presented sufficient evidence to send the case to the jury. We, therefore, reverse.

Motorists are required, by law, to maintain a proper lookout in the direction of travel. Hamilton v. McCash, 257 N.C. 611, 127 S.E. 2d 214 (1962). A motorist is deemed to have seen what he could have seen had he been maintaining a proper lookout. Miller v. Enzor, 17 N.C. App. 510, 195 S.E. 2d 86, cert. den., 283 N.C. 393, 196 S.E. 2d 276 (1973). His liability, therefore, is determined on the basis of whether, upon knowing of the existing conditions, he could have avoided the accident. Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38 (1965). Furthermore, “ ‘the presence of children on or near the traveled portion of a highway whom a driver sees, or should see, places him under the duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury.’ ” Winters v. Burch, 284 N.C. 205, 209, 200 S.E. 2d 55, 57 (1973), (quoting Brinson v. Mabry, 251 N.C. 435, 438, 111 S.E. 2d 540, 543 (1959)).

As Justice (later Chief Justice) Parker said in Ennis v. Dupree, 258 N.C. 141, 145, 128 S.E. 2d 231, 234 (1962),

“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 . . . defendant was negligent in operating [his truck] without keeping a proper lookout, that such negligence made it impossible for [him] to avoid the collision with the child, when by the exercise of due care [he] could and should have seen the child in time to avoid striking him. . .

The evidence would permit but not compel the jury to find that defendant could have seen the child either as he stopped near the end of the driveway or as he entered the roadway. He was then under a duty to proceed with caution to avoid striking the child if the child entered the roadway.

A directed verdict based on contributory negligence of the eleven-year-old child would also have been improper. There is a rebuttable presumption that children between the ages of seven and fourteen are incapable of contributory negligence. Thus, a child within this age bracket may not ordinarily have been, as a matter of law, contributorily negligent. Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974).

The judgment is reversed, and the case is remanded.

Reversed and remanded.

Judges Hedrick and Arnold concur.