{ "id": 8607854, "name": "WILLIE WASHINGTON, by HENRY WASHINGTON, his next friend v. WILLIE DAVIS, JR.", "name_abbreviation": "Washington ex rel. Washington v. Davis", "decision_date": "1958-10-15", "docket_number": "", "first_page": "65", "last_page": "69", "citations": [ { "type": "official", "cite": "249 N.C. 65" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "95 S.E. 2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606668 ], "opinion_index": 0, "case_paths": [ "/nc/245/0152-01" ] }, { "cite": "73 S.E. 2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626370 ], "opinion_index": 0, "case_paths": [ "/nc/236/0470-01" ] }, { "cite": "74 S.E. 2d 331", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "237 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606861 ], "opinion_index": 0, "case_paths": [ "/nc/237/0155-01" ] }, { "cite": "90 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625468 ], "opinion_index": 0, "case_paths": [ "/nc/243/0425-01" ] }, { "cite": "44 S.E. 2d 343", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622541 ], "pin_cites": [ { "page": "28" } ], "opinion_index": 0, "case_paths": [ "/nc/228/0025-01" ] }, { "cite": "83 S.E. 2d 898", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 721", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610330 ], "opinion_index": 0, "case_paths": [ "/nc/240/0721-01" ] }, { "cite": "102 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628312 ], "opinion_index": 0, "case_paths": [ "/nc/247/0693-01" ] } ], "analysis": { "cardinality": 511, "char_count": 10779, "ocr_confidence": 0.547, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.3118901912814222 }, "sha256": "a877b48a21127f7da15d3121921973bdb15201fc5e5ebf39786c927d94a1a3ae", "simhash": "1:3098d5aa135644d6", "word_count": 1848 }, "last_updated": "2023-07-14T22:25:15.863799+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "JOHNSON AND PARKER, JJ., not Sitting." ], "parties": [ "WILLIE WASHINGTON, by HENRY WASHINGTON, his next friend v. WILLIE DAVIS, JR." ], "opinions": [ { "text": "Bobbitt, J.\nPlaintiff\u2019s evidence tends to show that he was injured under these circumstances: On October 21, 1956, plaintiff was with Mrs. Streeter and her two daughters in the Streeter apartment, located in the apartment house at the northeast corner of Seaboard and Maxwell Streets. Mrs. Streeter, with her daughters and plaintiff, were going to ride with Elliott. Leaving her apartment, Mrs. Streeter crossed Seaboard Street with her eight year old daughter. Then her nine year old daughter crossed safely. Plaintiff, about ten feet behind the nine year old girl, attempted to cross. He came south, off of the (east) side of Maxwell Street nearest the Streeter apartment, towards the Elliott car. Plaintiff had \u201calmost crossed\u201d in front of defendant\u2019s car when struck by its left front fender. The impact occurred \u201cabout the center of Seaboard Street, and just a slight bit west of the northern projection of Maxwell.\u201d Defendant\u2019s speed was 45-50 miles per hour.\nIt is noted that defendant\u2019s evidence tends to show an entirely different factual situation.\nPlaintiff assigns as error:\n1. The court\u2019s failure to instruct the jury \u201cwith respect to the duty imposed by law upon a motorist to avoid injuring children whom he may see, or by the exercise of reasonable care should see, on or near the highway.\u201d\n2. This excerpt from- the charge, viz,: \u201cIf, however, you find that the child was not within a crosswalk, but instead the child was crossing in the middle- of the intersection or was crossing at some other place .there that was not a recognized crosswalk where people crossed, or if you find that the particular place where he was crossing, wherever you find it to be, was not a crosswalk and was not used by people as a crosswalk at an intersection, then as a necessary corollary of this principle of law I charge you that the defendant motorist loould have been under no affirmative duty to yield the right of way to the said child.\u201d (Our italics)\nImmediately following the challenged excerpt, the court gave this further instruction: \u201cNotwithstanding what the law may be with regard to right of way, I charge you .that it was the duty of this defendant motorist to exercise due care to avoid colliding with any pedestrian upon the roadway and also his duty to give warning by sounding the horn when he knew, or should have known in the exercise of ordinary due care, that it was necessary for him to do so. And also I charge you it was his duty to exercise proper precaution, that is to say ordinary due care, upon observing any child upon the street, if he did observe the child upon the street, so as to avoid injury to the said child.\u201d (Our italics)\nSince plaintiff, as a matter of law, was incapable of contributory negligence, Walston v. Greene, 247 N.C. 693, 102 S.E. 2d 124, we are concerned only with (1) defendant\u2019s legal duty and (2) his alleged failure to exercise due care in the performance \u00bfhereof. Barnes v. Caulbourne, 240 N.C. 721, 83 S.E. 2d 898.\n\u201cIt has been frequently declared by this Court to be the duty of one driving a motor vehicle on a public street who sees, or by the exercise of due care should see, a child on the traveled portion of the street or apparently intending to cross, to use proper care with respect to speed and control of his vehicle, the maintenance of vigilant lookout and the giving of timely warning, to avoid injury, recognizing the likelihood of the child\u2019s running across the street in obedience .to childish impulses and without 'circumspection.\u201d Devin, J., (later C. J.), in Sparks v. Willis, 228 N.C. 25, 28, 44 S.E. 2d 343.\n\u201cA motorist must recognize that children have less judgment and capacity to appreciate and avoid danger than adults, and that children are entitled to a care in proportion to their incapacity to foresee, to appreciate and to avoid peril.\u201d Parker, J., in Pope v. Patterson, 243 N.C. 425, 90 S.E. 2d 706, citing Sparks v. Willis, supra, and other prior decisions.\nIf in fact plaintiff attempted to cross Seaboard Street elsewhere than in a legal or recognized crosswalk, such fact would not relieve defendant of his legal duty under the rule of law 'stated above.\nThere was evidence which, if accepted by the jury, was sufficient to support a finding that defendant, by the exercise of due care, could and should have seen plaintiff as he attempted to. cross from -the north to the south side of Seaboard Street. This was a substantive and essential feature arising on the evidence, G.S. 1-180; and plaintiff was entitled, without special request therefor, to an instruction applying the rule of law stated in Sparks v. Willis, supra, and in other cases, in respect of defendant\u2019s legal duty under such circumstances. Hawkins v. Simpson, 237 N.C. 155, 74 S.E. 2d 331. We find nothing in the charge deemed sufficient to give plaintiff the benefit of this rule of law.\nThe court was in error in instructing the jury that defendant \u201cwould have been under no affirmative duty to yield the right of way to the said child\u201d if the place where plaintiff was crossing or attempting to cross was not a legal or recognized crosswalk.\nG.S. 20-174(e) provides: \u201cNotwithstanding the provisions, of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning -by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.\u201d (Our italics)\nThe duty to exercise due care to avoid colliding with any pedestrian upon any roadivay clearly embraces the duty to see what the motorist reasonably could and should have seen; and the further provisions, to wit, that the motorist give warning by sounding a horn when necessary and that he exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway, must be held to relate to what the motorist reasonably could and should have seen as well as to what he actually saw. Bank v. Phillips, 236 N.C. 470, 73 S.E. 2d 323.\nThe error in the challenged excerpt cannot be deemed cured by the instruction given immediately therafter; for that instruction was to the effect that it was defendant\u2019s duty to exercise proper precaution so as to avoid injury to the child if and when he actually observed the child upon the street.\nG.S. 20-174(e), as well as the rule of law stated in Sparks v. Willis, supra, and other cases, imposed upon defendant the legal duty to exercise proper precaution to avoid injury to the child if by the exercise of reasonable care he could and should have observed the child upon the street.\nAs to the rule in respect of sudden emergency, see Brunson v. Gainey, 245 N.C. 152, 95 S.E. 2d 514, and cases cited.\nFor the errors assigned, which we hold well taken, a new trial is awarded.\nNew trial.\nJOHNSON AND PARKER, JJ., not Sitting.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Bell, Bradley, Gebhardt & DeLaney for plaintiff, appellant.", "John H. Small for defendant, appellee." ], "corrections": "", "head_matter": "WILLIE WASHINGTON, by HENRY WASHINGTON, his next friend v. WILLIE DAVIS, JR.\n(Filed 15 October, 1958.)\n1. Automobiles \u00a7 34\u2014\nIt is the duty of a motorist in regard to a child on or near the traveled portion of a street to use proper care with respect to-speed and control of Ms vehicle, maintain a vigilant lookout and give timely warning to avoid injury, G.S. 20-174 (e), recognizing the likelihood of the child\u2019s running across the street in obedience to childish impulses, and the duty of the motorist in this respect applies not only to a child whom the motorist sees but also to a child whom a motorist should have seen in the exercise of reasonable vigilance, since he is charged with seeing what he could and should have seen.\n2. Same\u2014\nThe fact that a child attempts to cross a street elsewhere than at a recognized crosswalk does not relieve a motorist of his duty to exercise proper care under the circumstances to avoid injuring the child, and it is error for the court to charge the jury that the motorist would be under no affirmative duty to yield the right of way to the child if the child was crossing or attempting to cross at a place not a recognized crosswalk.\n3. Trial \u00a7 31b\u2014\nIt is the dusty of the court to charge upon a substantive and essential feature of the case arising on the evidence, even in the absence of request for special instructions. G.S. 1-180.\n4. Automobiles \u00a7 46\u2014\nError in an instruction to the effect that a motorist would not be under affirmative duty to yield the right of way to a child if the place where the child was crossing or attempting to cross the street was not a recognized crosswalk, held not cured by a subsequent charge that, notwithstanding the law with regard to right of way, the motorist would be under duty to exercise proper precaution upon observing any child to avoid injuring him, since such duty obtains not only to a child whom the motorist saw, but also to a child whom, the motorist could and should have seen in the exercise of due care.\nJohnson and Parkek, JJ., not sitting.\nAppeal by plaintiff from Craven, Special Judge, May 19 Civil Term, 1958, of MeCicleNbuRG.\nPersonal injury action.\nOn October 21, 1956, about 12:40 p.m. on Seaboard Street, at or near its intersection with Maxwell Street, in the City of Charlotte, an automobile operated by defendant collided with plaintiff, a four year old boy.\nSeaboard Street, a narrow paved street running east-west, is the top of a \u201cT\u201d intersection, being the south terminus of Maxwell Street. An embankment and railroad tracks are situated to the south of Seaboard Street.\nPlaintiff lived with his parents in an apartment house fronting on Seaboard Street, located at the northeast corner of said intersection. It was stipulated that this was a residential district. G.S. 20-141 (b)2.\nGeorge Elliott's automobile was parked on the south side of Seaboard Street, headed east, across Seaboard Street from said apartment. house. Defendant was operating his oar, headed west, along Seaboard Street.\nPlaintiff alleged: As plaintiff attempted to cross from the north side to the south side of Seaboard Street, he was struck and injured by defendant\u2019s ear; and the negligence of defendant p-roximately caused plaintiff\u2019s injuries.\nDefendant alleged: As defendant proceeded lawfully, west, along Seaboard Street, plaintiff, who was completely concealed behind the Elliott car, ran from this position, in a northerly direction, into the left front fender of defendant\u2019s oar, an event which defendant could not reasonably foresee or avoid.\nIssues of negligence and of damages were submitted. The jury having answered the negligence issue, \u201cNo,\u201d judgment was entered in favor of defendant. Plaintiffff excepted and appealed, assigning errors relating solely to the court\u2019s charge to the jury.\nBell, Bradley, Gebhardt & DeLaney for plaintiff, appellant.\nJohn H. Small for defendant, appellee." }, "file_name": "0065-01", "first_page_order": 107, "last_page_order": 111 }