The opinion
Judge MARTIN (Harry C.)
dissenting.
I concur in Judge Parker’s opinion with respect to the directed verdict in favor of the defendant Mamie Macon Shaw. However, I find there is sufficient evidence to enable plaintiff to overcome the motion for directed verdict by defendant Dan R. *412 Douglass and must dissent from that portion of the majority’s opinion.
The majority holds that Douglass, the driver of the car, had no duty toward plaintiff other than to let him out at a safe place and not to stop his car so as to create a hazard. The majority holds as a matter of law defendant complied with these duties.
I find there is sufficient evidence to require a jury determination of whether defendant complied with the duty to let plaintiff out of the car at a safe place. What is a safe place for a mature adult may not be safe for a five-year-old child. Defendant let plaintiff exit his car unattended in the nighttime on a busy street, when he knew plaintiff had to cross this street to go to the home of his grandmother. Defendant’s car was a two-door car and Fanny Douglass, who had charge of plaintiff and the other children before they got into the car, was in the back seat, unable to get out of the car until after plaintiff left it. This prevented her from being able to attend plaintiff as he exited.
Defendant knew that Fanny Douglass from her position in the back seat of the car could not control this five-year-old lad as he got out of the car. He knew the boy was going to cross the street to go to his grandmother’s home. Defendant had a duty to recognize the likelihood of plaintiff’s running across the street in obedience to childish impulses. Yokeley v. Kearns, 223 N.C. 196 , 25 S.E. 2d 602 (1943). Under these circumstances, due care by Douglass must be proportionate to the plaintiff’s incapacity adequately to protect himself. Id. In considering the alternatives available to Douglass in choosing a place to allow plaintiff to exit the car, it is difficult to conceive of a more dangerous place than the one he selected.
Likewise, I find the evidence of Douglass’s stopping his car in the dark on the busy street across from plaintiff’s destination is sufficient to allow a jury to decide whether defendant created a hazard for this five-year-old boy. Defendant could have easily driven the short distance required to park on the north side of East Commerce Street with the passenger side of the car adjacent to the curb and thereby allowed plaintiff and the other small children to go to the grandmother’s house without crossing the street. A jury could reasonably find that when defendant stopped the car on the opposite side of the street, he created the hazard *413 of requiring this five-year-old child to cross a dangerous street to reach his grandmother’s house.
In addition, under the facts of this case, I find defendant also had the duty to supervise or control plaintiff as he left the car, until Fanny Douglass was in position to resume her control over him. To hold defendant had no further duty to such a young child once he got out of the car is to disregard the rule in Yokeley that due care by defendant is proportionate to plaintiff’s incapacity adequately to protect himself. Because of his tender years, plaintiff could not adequately protect himself from harm when placed in these circumstances.
A motorist must recognize that children, and particularly very young children, have less judgment and capacity to avoid danger than adults, that their excursions into a street may reasonably be anticipated, that very young children are innocent and helpless, and that children are entitled to a care in proportion to their incapacity to foresee and avoid peril. [Citations omitted.]
“Experience demonstrates that children of tender years in or about streets and highways are likely in obedience to impulse to run into or across such streets and highways suddenly and without warning. Motorists must know and recognize this fact and govern themselves accordingly else the criminal and civil laws must be called upon to turn professor.” Fox v. Barlow, 206 N.C. 66 , 173 S.E. 43 . In other words, due care may require a motorist in a certain situation to anticipate that a child of tender years unmindful of danger will dart into a street in front of an approaching automobile.
Pavone v. Merion, 242 N.C. 594, 594-95 , 89 S.E. 2d 108, 108-09 (1955); see 30 A.L.R. 2d 1 (1953). Defendant had a duty to take such actions as a reasonably prudent person would take under those circumstances to prevent injury to plaintiff. Such actions might include telling Sebastian not to go into the street, getting out of the car with him, and holding him or preventing him from darting into the street until Mrs. Douglass was able to resume supervision of plaintiff. Defendant failed to so do.
I vote to reverse the directed verdict in favor of defendant Douglass.