Colson v. Shaw

• Decision Date: 06 January 1981
• Docket Number: No. 36,36
• Parties: Sebastian Lee COLSON, by his Guardian Ad Litem, Clarence W. Mattocks, and Patricia Ann Colson v. Mamie Macon SHAW and Dan R. Douglass.
• Court: North Carolina Supreme Court

Page 243

273 S.E.2d 243

301 N.C. 677

Sebastian Lee COLSON, by his Guardian Ad Litem, Clarence W Mattocks, and Patricia Ann Colson v. Mamie Macon SHAW and Dan R. Douglass.

No. 36.

Supreme Court of North Carolina.

Jan. 6, 1981.

Schoch, Schoch & Schoch by Arch Schoch, Jr., High Point, for plaintiffs-appellants.

Smith, Moore, Smith, Schell & Hunter by J. Donald Cowan, Jr. and Suzanne Reynolds, Greensboro, for defendant-appellee.

COPELAND, Justice.

The sole issue before us on this appeal is whether the evidence presented by plaintiffs at trial was sufficient to withstand defendant Douglass' motion for directed verdict. Since Judge Harry C. Martin's dissent was confined to that portion of the Court of Appeals' opinion which affirmed the entry of directed verdict in favor of defendant Douglass, we are not called upon to decide the propriety of the directed verdict entered for defendant Shaw. For the reasons stated below, we hold that the trial court erred in granting defendant Douglass' motion for directed verdict.

Plaintiffs alleged that defendant Douglass was negligent in failing to supervise the minor plaintiff in alighting from his vehicle, and in failing to instruct the child in crossing the street, in violation of his duty as the owner and operator of an automobile to exercise reasonable care to insure the safety of his invited passengers. Defendants denied plaintiffs' allegation of negligence and defendant Douglass contended that he had not duty to aid the minor plaintiff in crossing the street. The Court of Appeals agreed, holding that neither defendant was negligent as a matter of law.

It is well settled in North Carolina that the operator of an automobile has a duty to exercise that degree of care which a person of ordinary prudence would exercise under similar circumstances to prevent injury to the invited occupants of his vehicle. Wright v. Wright, 229 N.C. 503, 50 S.E.2d 540 (1948); Boykin v. Bissette, 260 N.C. 295, 132 S.E.2d 616 (1963). See also Basnight v. Wilson, 245 N.C. 548, 96 S.E.2d 699 (1957); 7A Am.Jur.2d Automobiles and Highway Traffic § 535 (1980). Our research has revealed no North Carolina cases which involve the particular duty that an operator owes to passengers alighting from his vehicle. It is generally established that the operator must at least allow his passengers to unload in a safe place and may not stop his car in a manner likely to create a hazard to those alighting. Nelson v. Williams, 300 Minn. 143, 218 N.W.2d 471 (1974); Employers Liability Assurance Corp., Ltd. v. Smith, 322 S.W.2d 126 (Ky.1959); 7A Am.Jur.2d Automobiles and Highway Traffic § 572 (1980). See also Chatterton v. Pocatello Post, 70 Idaho 480, 223 P.2d 389 (1950); Haskell v. Perkins, 16 Ill.App.2d 428, 148 N.E.2d 625 (1958). In defining defendant Douglass' duty to the minor plaintiff in this case, we may be guided by the decisions reached by other jurisdictions when presented with a similar factual situation, as compiled in Annot., 20 A.L.R.2d 789 (1951). Although we may be guided by these decisions, we also acknowledge the general principle that each case turning upon such an allegation of negligence must be decided on its facts, and no one decision is dispositive of another.

Our determination in the case is also influenced by the rule that where the actions of children are at issue, the duty to exercise due care should be proportioned to the child's incapacity to adequately protect himself. Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602 (1943). As stated by Justice Parker, (later Chief Justice) speaking for our Court in Pavone v. Merion, 242 N.C. 594, 594, 89 S.E.2d 108, 108 (1955):

"A motorist must recognize that children, and particularly very young children, have less judgment and capacity to avoid danger than adults, that their excursions into a street may reasonably be anticipated, that very young children are innocent and helpless, and that children are entitled to a care in proportion to their incapacity to foresee and avoid peril."

Upon defendant's motion for directed verdict at the completion of plaintiffs' evidence, the trial court's task was to consider the evidence in the light most favorable to plaintiffs, resolving any discrepancies in the evidence in favor of plaintiffs, to determine whether there was sufficient evidence to submit the case to the jury. Williams v. Wachovia Bank & Trust Co., 292 N.C. 416, 233 S.E.2d 589 (1977). After viewing plaintiffs' evidence in this case in the light most favorable to them, we hold that plaintiff presented enough evidence to enable to jury to find that defendant breached his duty to unload his passengers in a safe place. Plaintiff's evidence indicates that defendant allowed the five-year-old plaintiff to exit from his car unattended, on a busy residential street after dark, knowing that it was necessary for the child to cross the street to reach his destination. Since Ms. Douglass, who had been responsible for the minor plaintiff before getting into the car, was seated in the back seat of defendant's...