The opinion
Bobbitt, J.,
dissenting: The ultimate finding of the Full Commission was that the driver of the school bus was not negligent. In my opinion, the particular findings of fact show that this conclusion was reached under a misapprehension as to the applicable principles of law. McGill v. Lumberton, 215 N.C. 752 , 3 S.E. 2d 324 .
It is first noted that the Full Commission found that “there is no evidence in the record that the school bus struck the Bradshaw boy.” If this were correct, the conduct of the bus driver, negligent or otherwise, had no causal relation to the boy’s death. But the court, correctly I think, sustained plaintiff’s exceptive assignment of error as to this finding. The denial of plaintiff’s right to recover was sustained on the ground that the ultimate finding of “no negligence” was permissible and that the Full Commission had so found.
Quoted below are paragraphs 6 and 7 of the findings of fact:
“6. That on January 24, 1952, at approximately 3:30 P.M. the said Herbert Atwater, Jr., was driving the school bus on Church Street in a northerly direction and turned at the intersection of Church Street and McMaster Street onto McMaster Street in a westerly direction; that Church Street and McMaster Street intersect; that the intersection is not a complete intersection but both streets dead-end at the intersection forming a sharp curve; that vehicles traveling over the sharp curve had a tendency to drive on the inside of the curve, forming a one-way traffic lane on the inside of the center of the curve; that McMaster Street dead-ends at a school building approximately 500 feet from the sharp curve; that on the inside of the sharp curve was a bank approximately three feet high and on this bank was shrubbery and honeysuckle vines approximately two feet higher than the bank; that on the inside curve approximately three feet from the inside ditch was a mudhole.
“7. That the school bus in traveling around the curve, the rear wheel of the bus passed through the outer edge of the mudhole from the inside *397 of the curve; that the bus traveled after passing the curve approximately seventy-five feet before stopping; that the reason for the bus driver stopping the bus was that the children on the bus called his attention to the fact that a child was lying in the edge of the street near the curve; that after the bus stopped, Jimmy Louis Bradshaw was found lying at the end of the mudhole on McMaster Street with his head in the direction the bus was traveling; that when the doctor arrived some few minutes later he pronounced the child, Jimmy Louis Bradshaw dead; that the doctor found Jimmy Louis Bradshaw had a concussion above his left ear on the head.”
Uncontroverted evidence, as to the background facts, is to the effect that Church Street was a dirt street and that McMaster Street was a dirt or dirt and gravel street. Each was not less than 24 feet wide, from ditch to ditch. The State Highway Patrolman, who made the investigation, summed it up in these words: “The area where the two streets came together was rather large but the path the traffic followed was on the inside of the intersection. The inside of the intersection had been cut off or worn off. There was ample width for two vehicles to pass each other at any point.” (Italics added.)
It may be conceded that, in driving to the left of the center of Church Street and of McMaster Street, the bus driver was doing what others were accustomed to do in making this left turn from Church Street to McMaster Street. It may be further conceded that, because he did so, he was unable to see the child at or near the mud puddle.
Suppose a motorist had been traveling east on McMaster Street and made a right turn to proceed south on Church Street. Would there be any doubt as to the bus driver’s fault if a head-on collision had occurred?
Can the fact that motorists were accustomed to do as the bus driver did set at naught statutory provisions otherwise applicable? I think not. The background facts and the particular findings of fact, in my opinion, impel the conclusion that the bus driver operated the school bus in violation of G.S. 20-146 and G.S. 20-153 (a) and (b) and was therefore guilty of negligence per se. For this reason, I vote to remand for further consideration as to whether such negligence proximately caused the boy’s death. McGill v. Lumberton, supra.