Yokeley v. Kearns

• Decision Date: 19 May 1943
• Docket Number: 667.
• Citation: 25 S.E.2d 602,223 N.C. 196
• Parties: YOKELEY v. KEARNS.
• Court: North Carolina Supreme Court

25 S.E.2d 602

223 N.C. 196

YOKELEY v. KEARNS.

No. 667.

Supreme Court of North Carolina

May 19, 1943

This was an action for wrongful death of plaintiff's intestate alleged to have been caused by the negligence of the defendant in the operation of an automobile.

The evidence offered by plaintiff tended to show that his intestate, a boy not quite eight years of age, while attempting to cross a street in High Point, was struck and killed by defendant's automobile then being driven for her by her employed driver. The unfortunate happening occurred shortly after noon December 17, 1941, near the intersection of Idol Street, on North Main Street. It appears that plaintiff's intestate, the Yokeley boy, on his way home from school, with a number of other children had come across an open field which lay immediately east of Main Street, and had reached the east side of Main Street apparently intending to proceed across Main Street and thence westwardly along Idol Street to his home on the latter street. Idol Street enters Main Street from the west, but does not cross. Beyond, to the east and approximately in line with Idol Street, was a path leading across the field to Johnson Street School, some 1,100 feet distant.

Defendant's automobile, occupied by herself and daughter, and driven by her chauffeur, was proceeding south along Main Street. Near the intersection of Idol Street the boy was struck and killed. The speed of automobiles in that section was limited to 25 miles per hour. Main Street was paved 39 feet from curb to curb. At Idol Street there had been painted on the pavement the words "Slow, School Zone," but at this time as the result of traffic the words had been worn quite dim. As indicating the speed of the automobile, it appeared that from the point at the intersection of Idol Street where the boy's hat and some blood were found to the point where the car stopped and the crushed body of the boy fell from the fender to the ground was 126 feet; that the grill work on the front of the automobile was broken in, and the glass of the left head light was broken, and the shattered glass found scattered nearly as far back as where the hat was picked up. The noise of the impact when the boy was struck was very loud, and the body was badly broken and mangled, death ensuing instantly. Immediately after the collision the defendant Mrs. Kearns was heard to say, "I told the driver to slow up", and the witness thought she added that she told him to stop, that he would hit somebody. Where the boy's hat was picked up was in the middle of Main Street in front of Idol Street, and there were spots of blood along the middle of the street to where the car stopped just to the right of center of the street. The body was lying in the center. There was no other traffic on the street at the time, and there were no parked cars on either side of the street. The horn was not sounded. To the east and to the driver's left on approaching the place of collision was an open level field without houses or obstruction to the view. A witness who passed this place in his automobile, going north on Main Street, shortly before the accident, observed the Yokeley boy and another small boy come from across the field to the east side of Main Street and cross the curb into the street and stop at the witness' warning signal. Another witness, walking, came up Idol Street from the west and turned south on Main Street. She testified she saw the Yokeley boy and a group of small boys come to the east curb of Main Street nearly opposite the intersection of Idol Street and stop, the Yokeley boy in front. She was not observant of the approach of the defendant's automobile, or of exactly what happened, but she saw the boy's hat in the air, heard the "terrible noise" of the impact, and caught a glimpse of the rear of the automobile as it passed, and saw it stop at the point where the body fell to the ground.

It was admitted in the pleadings that defendant was in control of the automobile...