#### POLLY ANN HENDERSON, by her Next Friend, ADA LOCKLEAR v. LUTHER EDMUND LOCKLEAR.

(Filed 27 November 1963.)

Automobiles § 41m—

Evidence that a child less than five years old was on the hard surface ■of a highway, unattended, and clearly visible to defendant while he traveled a distance of one-half mile, that she ran across the highway toward her companion, another small child, when defendant was only some 40 feet away, and that defendant could not then, avoid striking the child, notwithstanding he had reduced his speed from some 45 miles per hour to 25 miles per hour, held sufficient to be submitted to the jury.

Appeal by plaintiff from Mallard, J., April 1963 Mixed Session of HoKe.

H. D. Harrison, Jr., for plaintiff.

Hostetler & McNeill for defendant.

Per Cukiam.

Infant plaintiff, by ¡her next friend, seeks to recover damages for personal injuries suffered by her on 18 December 1960 when she was struck by an automobile. The accident occurred on rural paved road No. 1105 near .Antioch in Hoke County.

The evidence .and inferences to be 'drawn therefrom, .considered in the light most favorable to. plaintiff, tend to establish the following facts.

The highway in the vicinity of the accident runs generally east and west and is straight and level. The paved portion is 18 feet wide; there are 7-foot shoulders on each side. The speed limit is 55 miles per hour. On 18 December 1960 the weather .was fair /and 'the road dry. The .accident occurred about 2:00 P.M. Defendant was .driving hiis ■automobile eastiwardly. There was no other vehicular traffic. There was nothing within the highway or its shoulder to obstruct the vision of a motorist. Defendant saw two small children, one of whom was the plaintiff, run from a house on tire south side of tire road, down a hill and into the highway. Plaintiff was “going on” 5 years of age. Defend-(anit was about one-half mile -away when he saw the children enter the (highway. Defendant ,was travelling 45 to 50 miles per hour. He took his foot off the accelerator and reduced speed to 25 miles per hour. Plaintiff crossed to the north side of the highway but her companion remained on .the south side. The children were proceeding west facing defendant’s approaching automobile. Plaintiff was walking on .the edge of the hardsurface. When defendant was about 40 feet away, plaintiff start*583ed running straight across the road towaa’d her companion. Defendant was in his proper lane of travel; he applied brakes and skidded 4 or 5 feet. Plaintiff came in contact with the oar just to the right of the center of the front of the hood. She was knocked to the pavement about 10 or 15 feet in front of the oar. She was rendered unconscious and suffered injuries.

Plaintiff, a ohild less than 5 years old and unattended by any person of responsible age, was on the bardsurfaoe portion of the highway and clearly visible to defendant at all times while be travelled a distance of one-half mile. It was to be anticipated that she might be generally inattentive to danger, and, upon the near approach of a vehicle, might act on impulse and attempt rbo run to her playmate. She did not suddenly dart from a place of concealment into the path of defendant’s vehicle. Johns v. Day, 257 N.C. 751, 127 S.E. 2d 543; Dixon v. Lilly, 257 N.C. 228, 125 S.E. 2d 426. She was not in a place of apparent safety, accompanied by older children' or adults. Brewer v. Green, 254 N.C. 615, 119 S.E. 2d 610; Brinson v. Mabry, 251 N.C. 435, 111 S.E. 2d 540. The duty of a motorist with respect to' the presence of children of tender age, whom the motorist sees, or in the exercise of reasonable care should see, on or near the highway, has been repeatedly declared. Ammons v. Britt, 256 N.C. 248, 123 S.E. 2d 579; Pope v. Patterson, 243 N.C. 425, 90 S.E. 2d 706; Pavone v. Merion, 242 N.C. 594, 89 S.E. 2d 108; Greene v. Board of Education, 237 N.C. 336, 75 S.E. 2d 129. In the light of the duty of the motorist in such circumstance, the questions whether the defendant in toe instant case was driving his vehicle at a greater speed than was reasonable and prudent [G.S. 20-141 (a) ], or whether he decreased speed to the extent that an ordinarily prudent parson would .have done [G.S. 20-141 (c) ], are for jury determination.

The judgment below is

Reversed.