Winslow, Margaret P.

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University of North Carolina School of Law

NORTH CAROLINA LAW REVIEWVolume 30 | Number 2 Article 162-1-1952Negligence -- Automobiles -- Sudden AppearanceDoctrineMargaret P. WinslowFollow this and additional works at: http://scholarship.law.unc.edu/nclrPart of the Law CommonsThis Note is brought to you for free and open access by Carolina Law Scholarship Repository. It has been accepted for inclusion in North Carolina LawReview by an authorized editor of Carolina Law Scholarship Repository. For more information, please contact law_repository@unc.edu.Recommended CitationMargaret P. Winslow, Negligence -- Automobiles -- Sudden Appearance Doctrine, 30 N.C. L. Rev. 183 (1952).Available at: http://scholarship.law.unc.edu/nclr/vol30/iss2/16NOTES AND COMMENTSand agent. 20 But it is hard to conceive that people engaged in a jointenterprise for mutual pleasure consider themselves as agents of eachother. Another point which illustrates that the rule is a pure fiction,with little if any basis in reality, is the fact that a member of a jointenterprise is deemed by law to have a legal right to control the opera-tion of the vehicle without having any actual control. A theoreticalright of control is thus a sufficient basis for imputing the negligence ofthe driver to the passenger. Of course, if the passenger knows of ap-proaching danger and fails to warn the driver, he himself may be liableon the theory of actual negligence.21One argument in favor of enforcing the joint enterprise rule is thefact that the parties enter into the transaction or enterprise of their ownfree will. Likewise they have the choice of withdrawing at their pleasure.One striking point about the present case is the fact that the occupantsof the patrol car were fellow employees. They were working for acommon employer. The plaintiff had no choice in the selection of theperson with whom he would be associated during the patrol job. Heeither had to ride with the man assigned with him or stand the risk oflosing his job. In view of this situation the court might have ruled thatan important element-the privilege of quitting the venture at will-was lacking, and therefore it was not a true joint enterprise.22ROBERT L. WHITMIRE, JR.Negligence-Automobiles--Sudden Appearance DoctrineIn a recent action for the wrongful death of a child,' the NorthCarolina Supreme Court applied, for the first time, the descriptive phrase"sudden appearance" to a doctrine long recognized in automobile negli-gence cases. 2 This doctrine is applied in those cases where a motoriststrikes a theretofore unseen child who darts in front of his automobile.Such an accident is regarded as unavoidable, thereby relieving the mo-torist of liability.3 Generally, North Carolina has applied this doctrineto cases where the child has run from behind another vehicle or has0 Albritton v. Hill, 190 N. C. 429, 130 S. E. 5 (1925); 1 VARTANIAN, THELAW OF AUTOmOBILES, §59 (1947)." Central of Georgia R. R. v. Watkins, 37 F. 2d 710 (5th Cir. 1930).2 For a case exactly in point, with the same result as the principal case, seeCollins v. Graves, 17 Cal. App. 2d 288, 61 P. 2d 1198 (1936).' Register v. Gibbs, 233 N. C. 456, 64 S. E. 2d 280 (1951).'In Butler v. Alien, 233 N. C. 484, 64 S. E. 2d 561 (1951), decided one weeklater, this phrase appears in the headnote but not in the opinion. This phrase hasbeen used by other courts, however. Christian v. Smith, 78 Ga. App. 603, 51 S. E.2d 857 (1949) ; Fultz' Adm'r. v. Williams, 266 Ky. 651, 99 S. W. 2d 803 (1936).' See Notes, 113 A. L. R. 528, 536 (1938) ; 65 A. L. R. 192, 197 (1930). Thisnote does not deal with those cases involving the question of contributory negli-gence on the part of the child. See generally, Note, 107 A. L. R. 5 (1937).1952]NORTH CAROLINA LAW REVIEWbroken away from the control of an adult.4When the child has been visible for some distance, however, thedefendant is not relieved of liability, because such action should havebeen anticipated. 5 This is true if the child was seen or could have beenseen by a proper lookout. The reasoning of the cases differs as to thedegree of care required. Some hold that more than ordinary care isrequired. 6 Others only require ordinary care but recognize that thevigilance of the operator varies with the age, physical condition, andcircumstances under which the child is seen. 7 Thus, the standard ofcare remains the same, but the amount of diligence, attention, or effortrequired varies. The expectation that children act heedlessly8 is merelyone circumstance to be considered. This, of course, means that "thegreater the danger, the greater the care which must be exercised."03While a motorist may reasonably presume that an adult will remain ina place of safety,' 0 the prevailing view today requires an assumptionthat a child may move into danger."'Fox v. Barlow, 206 N. C. 66, 173 S. E. 43 (1934); Kennedy v. Lookadoo,203 N. C. 640, 166 S. E. 752 (1932) ; Fisher v. Deaton, 196 N. C. 461, 146 S. E.66 (1928). But cf. Mills v. Moore, 219 N. C. 25, 12 S. E. 2d 661 (1940) (eighteen-month-old whose presence in the road could not be explained was struck by de-fendant's truck; nonsuit was allowed because it was highly speculative as to whetherdefendant could have seen the child; four-to-three decision with vigorous dissent byJustice Seawell.).In Green v. Bowers, 230 N. C. 651, 55 S. E. 2d 651 (1949), and Bass v. Hocutt,221 N. C. 218, 19 S. E. 2d 871 (1942), new trials were granted because of the failureof the trial court to charge the jury concerning the possibility that the act of thechild was the proximate cause of the injury.Butler v. Allen, 233 N. C. 484, 64 S. E. 2d 561 (1951) ; Register v. Gibbs,233 N. C. 456, 64 S. E. 2d 280 (1951) ; Yokeley v. Kearns, 223 N. C. 196, 25 S. E.2d 602 (1943); Caulder v. Motor Sales, Inc., 221 N. C. 437, 20 S. E. 2d 338(1942) ; Smith v. Miller, 209 N. C. 170, 183 S. E. 370 (1935) ; Moore v. Powell,205 N. C. 636, 172 S. E. 327 (1934); Goss v. Williams, 196 N. C. 213, 145 S. E.169 (1928). But cf. Parks v. Willis, 228 N. C. 25, 44 S. E. 2d 343 (1947) (non-suit reversed where six-year-old evidently ran out from a garage across street andfell under the rear wheels of a truck which had turned to avoid hitting her; thetruck was exceeding the speed limit by five miles per hour) ; Hughes v. Thayer,229 N. C. 773, 51 S. E. 2d 488 (1949) (two children alighted from a school bus;one ran across safely in front of the bus, but the other, an eight-year-old, waitedfor the bus and two cars following to pass, then ran across the road in front ofdefendant's car approaching from the other direction.).'Yokeley v. Kearns, supra note 5; Kelly v. Hunsucker, 211 N. C. 153, 189S. E. 664 (1936) ; Smith v. Miller, siepra note 5; Fox v. Barlow, 206 N. C. 66,173 S. E. 43 (1934) ; Moore v. Powell, supra note 5; Goss v. Williams, 196 N. C.213. 145 S. E. 169 (1928) ; State v. Gray, 180 N. C. 697, 104 S. E. 647 (1920). ''In Rea v. Simowitz, 225 N. C. 575, 35 S. E. 2d 871 (1945), Justice Barnhillattempted to clarify the misconception that a higher standard of care is required,stating that there are no degrees of care in fixing responsibility for negligence.The motorist is only held to the standard of care which a prudent man would haveused under the circumstances.'Hughes v. Thayer, 229 N. C. 773, 51 S. E. 2d 488 (1949) ; Yokeley v. Kearns,223 N. C. 196, 25 S. E. 2d 602 (1943) ; Smith v. Miller, 209 N. C. 170, 183 S. E.370 (1935); Fox v. Barlow, 206 N. C. 66, 173 S. E. 43 (1934).9 REST.ATEmENT, TORTS, §298 (1947)."o Fox v. Barlow, 206 N. C. 66, 173 S. E. 43 (1934) ; Bryan v. Fewell, 191 Va.647, 62 S. E. 2d 39 (1950)." Webster v. Luckow, 219 Iowa 1048, 258 N. W. 685 (1935); Hughes v.(Vol. 30NOTES AND COMMENTSAnother situation where the doctrine of "sudden appearance" isinapplicable is where the driver has been guilty of some negligent actwhich made it impossible to see the child or to avoid the accident afterseeing the child. 12 So, where a child darts out from beside the road,and the driver is going at such an excessive rate of speed that he isunable to stop before striking the child, he cannot escape liability underthis doctrine.13Whether the driver saw, or could have seen, the child in time toavoid a collision, and whether, once seen, he exercised the care of areasonable, prudent man to avoid a collision, is always a question offact. But once it is established that the child was or should have beenseen, the doctrine of "sudden appearance" becomes inapplicable, and thetendency of most courts is to hold the driver to an almost absoluteliability.14MARGARET P. WINSLOW.Negligence-Railroads-Custom as EvidenceDefendant's train was blocking a city street for longer than fiveminutes, in violation of a municipal ordinance, when plaintiff attemptedto climb between the cars in order to return to his place of employment.The train was suddenly moved without signal injuring plaintiff. The dis-trict court excluded evidence of a long standing custom for persons toclimb between railroads cars which blocked the crossing, and dismissedon the ground that plaintiff was guilty of contributory negligence. InStratton v. Southern Ry.,' the Court of Appeals for the Fourth CircuitThayer, 229 N. C. 773, 51 S. E. 2d 488 (1949) ; Price v. Burton, 155 Va. 229, 154S. E. 499 (1930).But see Brown v. Wade, 145 So. 790 (La. App. 1933), where the court statedthat a driver could assume that a child would stay on an urban sidewalk, but couldnot so assume as to a child on a county road; Faatz v. Sullivan, 199 Iowa 875,200 N. W. 321 (1924), where a boy was struck by defendant after he had passedpathway of car when he retraced his steps, the Supreme Court held the juryshould have been told that driver of automobile had right to assume that the boyhaving reached a place of safety would either remain there or continue on hisjourney; Moeller v. Packard, 86 Cal. App. 459, 261 Pac. 135 (1927) ; Hutchesonv. Misenheimer, 169 Va. 511, 194 S. E. 665 (1938)." Butler v. Allen, 233 N. C. 484, 64 S. E. 2d 561 (1951) ; Kelly v. Hunsucker,211 N. C. 153, 189 S. E. 664 (1936) ; Goss v. Williams, 196 N. C. 213, 145 S. E.169 (1928) ; Harper v. Crislip, 103 Va. 514, 138 S. E. 93 (1927).2 Butler v. Allen, 233 N. C. 484, 487, 64 S. E. 2d 561, 563 (1951), ... whereone is driving an automobile at a speed in excess of the statutory limit, or at agreater speed than is reasonable and prudent under the conditions then existing,the mere fact that a child suddenly runs in front of the moving vehicle, does notnecessarily relieve the driver from liability. There still remains the questionwhether the negligent driving of the automobile made it impossible for the driverof the car, under the circumstances, to avoid the accident after seeing the child,or whether by the exercise of reasonable care, such driver could have seen thechild in time to avoid the injury.""' See note 3 supra.' 190 F. 2d 917 (4th Cir. 1951).1952]

Negligence -- Automobiles -- Sudden Appearance Doctrine

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Negligence -- Automobiles -- Sudden Appearance Doctrine

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