{
  "id": 8549784,
  "name": "JOHNNY EUGENE ADKINS, by his Guardian ad Litem DENZEL G. ADKINS v. DAVID COLEMAN CARTER",
  "name_abbreviation": "Adkins v. Carter",
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    "judges": [
      "Judges Hedrick and Arnold concur."
    ],
    "parties": [
      "JOHNNY EUGENE ADKINS, by his Guardian ad Litem DENZEL G. ADKINS v. DAVID COLEMAN CARTER"
    ],
    "opinions": [
      {
        "text": "VAUGHN, Judge.\nPlaintiff contends that the court erred in granting defendant\u2019s motion for a directed verdict. Upon defendant\u2019s motion for a directed verdict, the evidence must be taken as true and reviewed in the light most favorable to the plaintiff. Adler v. Lumber Mutual Fire Insurance Co., 280 N.C. 146, 185 S.E. 2d 144 (1971). \u201cWhen so considered, the motion should be allowed if, as a matter of law, .the evidence is insufficient to justify a verdict for the plaintiff.\u201d Adler v. Lumber Mutual Fire Insurance Co., supra, at 148. Taking the evidence in the light most favorable to the plaintiff, we believe he presented sufficient evidence to send the case to the jury. We, therefore, reverse.\nMotorists are required, by law, to maintain a proper lookout in the direction of travel. Hamilton v. McCash, 257 N.C. 611, 127 S.E. 2d 214 (1962). A motorist is deemed to have seen what he could have seen had he been maintaining a proper lookout. Miller v. Enzor, 17 N.C. App. 510, 195 S.E. 2d 86, cert. den., 283 N.C. 393, 196 S.E. 2d 276 (1973). His liability, therefore, is determined on the basis of whether, upon knowing of the existing conditions, he could have avoided the accident. Raper v. Byrum, 265 N.C. 269, 144 S.E. 2d 38 (1965). Furthermore, \u201c \u2018the presence of children on or near the traveled portion of a highway whom a driver sees, or should see, places him under the duty to use due care to control the speed and movement of his vehicle and to keep a vigilant lookout to avoid injury.\u2019 \u201d Winters v. Burch, 284 N.C. 205, 209, 200 S.E. 2d 55, 57 (1973), (quoting Brinson v. Mabry, 251 N.C. 435, 438, 111 S.E. 2d 540, 543 (1959)).\nAs Justice (later Chief Justice) Parker said in Ennis v. Dupree, 258 N.C. 141, 145, 128 S.E. 2d 231, 234 (1962),\n\u201cThis is a borderline case, but considering the evidence in the light most favorable to plaintiff, it is our opinion that it would permit, but not compel, a jury finding that the . . . defendant was negligent in operating [his truck] without keeping a proper lookout, that such negligence made it impossible for [him] to avoid the collision with the child, when by the exercise of due care [he] could and should have seen the child in time to avoid striking him. . .\nThe evidence would permit but not compel the jury to find that defendant could have seen the child either as he stopped near the end of the driveway or as he entered the roadway. He was then under a duty to proceed with caution to avoid striking the child if the child entered the roadway.\nA directed verdict based on contributory negligence of the eleven-year-old child would also have been improper. There is a rebuttable presumption that children between the ages of seven and fourteen are incapable of contributory negligence. Thus, a child within this age bracket may not ordinarily have been, as a matter of law, contributorily negligent. Anderson v. Butler, 284 N.C. 723, 202 S.E. 2d 585 (1974).\nThe judgment is reversed, and the case is remanded.\nReversed and remanded.\nJudges Hedrick and Arnold concur.",
        "type": "majority",
        "author": "VAUGHN, Judge."
      }
    ],
    "attorneys": [
      "Moore & Willardson, by Larry S. Moore, John S. Willardson and Robert P. Laney, for plaintiff appellant.",
      "Womble, Carlyle, Sandridge & Rice, by William F. Womble, Jr., and Keith W. Vaughan, for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "JOHNNY EUGENE ADKINS, by his Guardian ad Litem DENZEL G. ADKINS v. DAVID COLEMAN CARTER\nNo. 7823SC186\n(Filed 6 March 1979)\nAutomobiles \u00a7 69\u2014 striking child on bicycle \u2014 keeping proper lookout \u2014 directed verdict for motorist improper\nIn an action to recover for injuries sustained by the minor plaintiff when he was struck by defendant motorist, the trial court erred in granting defendant\u2019s motion for directed verdict where the evidence would permit but not compel the jury to find that defendant could have seen the child either as he stopped his bicycle near the end of his driveway or as he entered the roadway had defendant maintained a proper lookout.\nAppeal by plaintiff from Kivett, Judge. Judgment entered 15 November 1977 in Superior Court, YADKIN County. Heard in the Court of Appeals 28 November 1978.\nPlaintiff instituted this action to recover damages for injuries received when the defendant\u2019s truck struck the plaintiff. The evidence at trial tended to show that the plaintiff, age 11, lived with his family on the east side of a rural paved road which runs north and south. On 4 July 1975, plaintiff was going to the Longtown Grocery Store located on the highway south of his home. He headed out the driveway on his bicycle, stopped \u201cpretty close to the road,\u201d and looked both ways. When he looked to the left, the road was clear and he could see up to a curve in the road, a distance of two-tenths of a mile. He entered the road, crossed the center line and was heading south when he was struck by defendant\u2019s truck which was traveling north.\nThe highway patrolman who investigated the accident testified that the truck made eighty-five feet of skid marks beginning near the center line and veering left onto the western shoulder. Sixty-five feet of those skid marks were on the western shoulder. The skid marks led up to bloodstains and broken glass which were on the western edge of the southbound lane. The bloodstains were slightly north of the driveway entrance. The truck was twenty feet beyond the bloodstains. The speed limit at the site of the accident was 55 m.p.h. The road is straight for about two-tenths of a mile south from plaintiff\u2019s driveway. The paved roadway is eighteen feet wide with shoulders of about six feet on each side.\nThe plaintiff\u2019s father testified that when he arrived at the scene the defendant told him that \u201che didn\u2019t see the boy. He didn\u2019t aim to hit him.\u201d The plaintiff\u2019s father also testified that one could clearly see down the road from the driveway to the curve.\nAt the close of the plaintiff\u2019s evidence, the court granted the defendant\u2019s motion for a directed verdict on the grounds that the evidence failed to establish any actionable negligence on the part of the defendant. The court denied defendant\u2019s alternative motion for a directed verdict on the basis that the evidence established contributory negligence of the plaintiff as a matter of law. From this judgment, plaintiff appealed.\nMoore & Willardson, by Larry S. Moore, John S. Willardson and Robert P. Laney, for plaintiff appellant.\nWomble, Carlyle, Sandridge & Rice, by William F. Womble, Jr., and Keith W. Vaughan, for defendant appellant."
  },
  "file_name": "0258-01",
  "first_page_order": 286,
  "last_page_order": 288
}
