Greene v. Mitchell County Bd. of Educ.

• Decision Date: 18 March 1953
• Docket Number: No. 239,239
• Citation: 237 N.C. 336,75 S.E.2d 129
• Parties: GREENE, v. MITCHELL COUNTY BOARD OF EDUCATION et. al.
• Court: North Carolina Supreme Court

Page 129

75 S.E.2d 129

237 N.C. 336

GREENE, v. MITCHELL COUNTY BOARD OF EDUCATION et. al.

No. 239

Supreme Court of North Carolina.

March 18, 1953

W. E. Anglin, Burlington, for plaintiff appellee.

Atty. Gen. Harry McMullan, Asst. Atty. Gen. Claude L. Love, and Charles G. Powell, Jr., and Gerald F. White, of Staff, Raleigh, for defendant appellant.

BARNHILL, Justice.

Ch. 1059, Session Laws 1951 (codified as General Statutes Ch. 143, art. 31, supplement of 1951) provides for the payment of damages for personal injuries sustained by any person 'as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted.' Recovery by any one claimant is limited to $8,000, including medical and other expenses. G.S. § 143-291.

The Industrial Commission is vested with jurisdiction to hear claims arising under the Act, and its findings of fact are conclusive if there is any competent evidence to support them. G.S. § 143-293.

While defendants in their application for a review by the full Commission of the award made by the hearing commissioner assigned certain errors on the part of the hearing commissioner, they neither excepted to nor assigned error in the award made by the full Commission. Neither did they except to the award entered. They were content to give written notice of their appeal to the Superior Court.

At the hearing in the court below they, through counsel, moved to remand for '(1) A specific hearing (sic) as to the specific acts of negligence complained of; (2) a finding as to where Norma Lee Greene, deceased, was standing at the time of the bus' departure, and how long she had been standing there, and (3) whether she was in a position to have been seen by the driver of the bus. ' They likewise moved for judgment of nonsuit and excepted to the refusal of the court to interrupt the hearing and send for the court reporter so that they might, at that time, enter exceptions to specific findings of fact and conclusions of law of the Industrial Commission. They likewise moved the court to strike the Commission's finding of fact No. 9. The appeal to this Court is based on the exceptions to the rulings of the court below made on these motions entered at the hearing.

Since the appeal of the defendants from the Industrial Commission to the Superior Court was unsupported by any exception, it amounted to nothing more than a general exception to the decision and award of the Commission. It was insufficient to challenge the sufficiency of the evidence to support the findings of fact of the Commission or any one of them. It carried up for review in the Superior Court the single question whether the facts found by the Commission support the decision and award. Parsons v. Swift & Co., 234 N.C. 580, 68 S.E.2d 296; Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488; In re Sams' Estate, 236 N.C. 228, 72 S.E.2d 421.

The facts found by the Commission are fully supported by the evidence and are therefore, under the terms of the statute, binding on us. G.S. § 143-293. They sustain the conclusion of the Commission that the death of plaintiff's intestate was proximately caused by the negligence of an employee of defendants, State agencies, in the course of his employment, and the award was within the limit prescribed by statute. G.S. § 143-291.

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 capacity to shun danger than adults; are more prone to act on impulse, regardless of the attendant peril; and are lacking in full appreciation of danger which would be quite apparent to a mature person. When, therefore, he sees, or by the exercise of due care should see, that children are on the highway, he must immediately bring his vehicle under control and, in the exercise of ordinary care, proceed in such manner and at such speed as is reasonably calculated to enable him to avoid striking such child or children. Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Edwards v. Cross, 233 N.C. 354, 64 S.E.2d 6; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602; Smith v. Miller, 209 N.C. 170, 183 S.E. 370; Moore v. Powell, 205 N.C. 636, 172 S.E. 327.

This duty to exercise a high degree of caution in order to meet the standard of care required of a motorist, Rea v. Simowitz, 225 N.C. 575, 35 S.E.2d 871, 162 A.L.R. 999, when he sees or by the exercise of ordinary care should see children on a highway applies with peculiar emphasis to the operator of a school bus transporting children to their homes after school. His passengers are in his care and he knows that many of them must cross the road after they alight from the bus. It is his duty to see that those who do alight are in places of safety before he again puts his vehicle in motion.

The rules adopted by the N. C. Board of Education governing public school transportation as they relate to the operation of school buses expressly provide that the driver of a school bus must 'supervise the activities of children discharged from the bus until they have crossed the highway in safety or are otherwise out of danger' and 'shall not start the school bus until pupils are seen to be out of danger.' Rules,...