Ennis v. Dupree, 542

• Decision Date: 21 November 1962
• Docket Number: No. 542,542
• Citation: 128 S.E.2d 231,258 N.C. 141
• Parties: Grady ENNIS, Administrator of the Estate of Cecil Mac Ennis, Deceased, v. Tallie DUPREE and wife, Sarah Dupree.
• Court: North Carolina Supreme Court

Page 231

128 S.E.2d 231

258 N.C. 141

Grady ENNIS, Administrator of the Estate of Cecil Mac Ennis, Deceased, v. Tallie DUPREE and wife, Sarah Dupree.

No. 542

Supreme Court of North Carolina.

Nov. 21, 1962

Taylor & Morgan, Lillington, and Everette L. Doffermyre, by Everette L. Doffermyre, Dunn, for plaintiff appellant.

Dupree & Strickland, by Franklin T. Dupree, Angier, and Dupree, Weaver, Horton & Cockman, by F. T. Dupree, Jr., Raleigh, for defendant appellees.

PARKER, Justice.

Plaintiff alleged, inter alia, that the feme defendant was negligent in driving the 1958 Plymouth station wagon in that she failed to keep a proper lookout in the direction she was traveling.

Defendants filed a joint answer denying any negligence on the part of the feme defendant in the operation of the station wagon, and conditionally pleading as a bar to plaintiff's action contributory negligence of plaintiff's intestate.

Plaintiff examined feme defendant as an adverse witness, and offered other evidence. Plaintiff's evidence, when considered in the light most favorable to him, tends to show these facts:

About 3:40 o'clock p. m. on 16 February 1959 Mrs. Sarah Dupree, a school teacher, was driving a 1958 Plymouth station wagon on her right side of the road in a northerly direction on State Highway #55, traveling from the town of Coats to the town of Angier. The station wagon was owned by her husband, the male defendant, was registered in his name, and was maintained by him for his wife's pleasure and convenience. Mrs. Hilda Rose Lee, Frances Hockaday and Sheila Dupree, a daughter of defendants, were riding in the station wagon as passengers.

Highway #55, which has pavement 24 feet wide and dirt shoulders several feet wide on each side of the pavement, is straight for several hundred feet south of the place where the collision on the highway occurred. At or near the scene of the collision two dirt roads, one from the east and one from the west, intersect the highway. The road intersecting the highway from the east is slightly south of the road that intersects the highway from the west. William Ragsdale, a registered civil engineer and plaintiff's witness, testified in respect to the dirt road from the west: It 'is a path that leads from a dwelling house which lies on the west side of the road. * * * On the west side of the road there is an embankment that projects up higher than the surface on the road.' The dirt road that intersects the highway from the east is about 12 feet wide, goes down into the highway at a fairly steep angle, and has no highway sign on it. There is an embankment on the east side of the highway and south of the intersecting road on the east ten feet in height. According to measurements made by State Highway Patrolman Stuart Moore, the distance from the pavement to the embankment on the east side of the highway at or near the scene of the collision is 20 feet: it is 32 feet from the center line of the highway to the embankment.

At and near the scene of the collision feme defendant was traveling on the highway at a speed of 40 to 45 miles an hour. It was open country, and the speed limit was 55 miles an hour. No other motor cars were near. She was looking straight ahead. She testified: 'The first time I saw the child was when he shot in front of me. I swerved to keep from hitting the child. I am not sure if the bicycle was in front of me when I swerved. I saw the child as it shot, it seemed to drop from the heavens or somewhere. I do not know where, and I swerved. I saw the child for the first time when the child was in front of me and I swerved my car. I never did see the child on the side of the road or riding across the road. You could not see up that pathway 10 feet embankment. I did not see the child up there. I did not see the child on the hard surface peddling in front of me.' She also testified: 'When I saw and struck the child it must have happened in a split second.' She did not apply her brakes after hitting the child. Her station wagon swerved to the left of the highway, went down the highway on its west side about 120 feet, and turned over in the ditch on the left side of the highway.

Patrolman Moore arrived at the scene shortly after the collision. On the west side of the highway, about 18 inches from the center line, he saw a scooped-out place at a point across from the right-hand ditch of the dirt road intersecting the highway from the east. The station wagon was turned over in the ditch on the west side of the highway 122 feet from the scooped-out place. He testified: 'I found the bicycle on the west side of the road and the body of the deceased child lying in the ditch beside the station wagon.' He further testified: 'She [feme defendant] advised that the child was in front of her. She saw it and in a flash she struck the child. She said the first time she saw the child, the child was in front of her, that she had not seen the child just a flash before she struck it.'

Cecil Mac Ennis was riding a 26' bicycle. When killed, he was eight years, eleven months old, lacking three days. Defendants admit in their answer Cecil Mac Ennis died as a result of the injuries which he received in the collision.

The Court in Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426, quotes from Blashfield, Cyclopedia of Automobile Law and Practice, Per. Ed., Vol. 2A, section 1498, as follows:

'Drivers or owners of motor vehicles are not insurers against all accidents wherein children are injured. Accordingly, a driver proceeding along a street or highway in a lawful manner using ordinary and reasonable caution for the safety of others, including children, will not be held liable for striking a child whose presence in the street could not reasonably be foreseen. He is not required to anticipate the appearance of children in his pathway, under ordinary circumstances, from behind parked automobiles or other obstructions.

'Thus, when a motor vehicle is proceeding upon a street at a lawful speed,...