Brown v. Charlotte-Mecklenburg Bd. of Ed., CHARLOTTE-MECKLENBURG

• Decision Date: 22 March 1967
• Docket Number: CHARLOTTE-MECKLENBURG,No. 275,275
• Citation: 269 N.C. 667,153 S.E.2d 335
• Parties: Jennifer J. BROWN, by her Legal Guardian, Next Friend, Robert F. Brown, v.BOARD OF EDUCATION.
• Court: North Carolina Supreme Court

Page 335

153 S.E.2d 335

269 N.C. 667

Jennifer J. BROWN, by her Legal Guardian, Next Friend, Robert F. Brown, v. CHARLOTTE-MECKLENBURG BOARD OF EDUCATION.

No. 275.

Supreme Court of North Carolina.

March 22, 1967.

Welling & Miller, Charlotte, for plaintiff appellant.

Brock Barkley, Charlotte, for defendant appellee.

LAKE, Justice.

The defendant did not except to the Commission's 'Findings of Fact' 1, 2 and 3. The correctness of these findings is, therefore, not before us for review. Greene v. Board of Education, 237 N.C. 336, 75 S.E.2d 129. In any event, each of the findings incorporated in these paragraphs of the Commission's order is amply supported by evidence in the record and is, therefore, conclusive on appeal. G.S. § 143--293.

Items 13, 14 and 15, included by the Commission under the designation 'Findings of Fact,' are, however, mixtures of findings of fact and conclusions of law and, therefore, were subject to review by the superior court, and by us, on appeal. As stated by Ervin, J., speaking for the Court in Woodard v. Mordecai, 234 N.C. 463, 67 S.E.2d 639, 'Whether a statement is an ultimate fact or a conclusion of law depends upon whether it is reached by natural reasoning or by an application of fixed rules of law.' The determination of negligence, proximate cause and contributory negligence requires an application of principles of law to the determination of facts. These are, therefore, mixed questions of law and fact and so are reviewable on appeal from the Commission, the designation 'Finding of Fact' or 'Conclusion of Law' by the Commission not being conclusive.

Upon an appeal from the Industrial Commission, the reviewing court may not find facts in addition to those found by the Commission, even though there is in the record evidence to support such a finding, the appeal being 'for errors of law only.' G.S. § 143--293.

Consequently, the question for the superior court and for this Court is whether the facts found by the Commission are sufficient to support its conclusion that the driver of the bus was negligent. We hold that they are sufficient to support such conclusion. The Commission had found that for a substantial distance before he reached that children the driver could see them and that the plaintiff was standing upon the street pavement near the gutter, there being no sidewalk; the driver did see the children, some of whom were pushing and shoving as he approached; though going only two miles per hour, he drove the bus into the plaintiff and permitted it to continue to move forward five feet after she fell in front of the wheel. In Greene v. Board of Education, supra, Barnhill, J., later C. J., apeaking for the Court, said:

'We have repeatedly held that the presence of children on or near a highway is a warning signal to a motorist. He must recognize that children have less ...