as i indicated previously as a party who is appealing the green of summary judgment all evidence must be construed liberally in favor of the pointer so here we must assume that the plaintiff who testified defended was traveling forty five mph immediately before the accident and she was travelling forty five miles per hour that she was also speeding but the allegation travelling too fast for the conditions is more she is more appropriate here when you factor in the presence of children in the street and this is also where among the first problem with the grain of summary judgment as you judge well aware for some reason the green into must be no material facts in dispute but there is conflicting testimonies of how fast to defend it was true now defense counsel will certainly argue that the defendant speed is not a material fact because the defendant is not negligent the slowdown on the other hand as i'm sure defense counsel point out both when this is indicated that they did not observe the defendant's eyes immediately before the accident so they cannot testify that she was and that she wasn't paying attention but the fact that she didn't slow down certainly speed when she saw that there were children in the road or did she feel the proper people proper look out into the children as i indicated previously the telly case stands for the proposition that a motorist must exercise greater fear for the safety of children and he will for an adult return in the proximate cause argument if the defendant had reduced to speed and kept a proper lookout then the accident would not have happened and surely evidence liberally in favor of the plaintiff the defendant was the proximate cause of the plaintiff's injuries because she did not slow down and failed children are by their nature of erratic and prone to do foolish things like run in front of cars additionally the other cases of one would have a collision ever occurred in the event it was on a preferential highway not a city street and in other cases the defendant cites was there an allegation immediately before the hexan is in dispute and surely evidence liberally in favor of the plaintiff the defendant was travelling between thirty and forty five miles per hour meeting for the use of his students certainly material to the case of clark as there is a draft drastic difference between the forty was one point there was a they were considering the possibility that she was turning the hardee's restaurant i'm speaking now did the two other witnesses obviously why mention robert wilson reconciles or both eye witnesses to this accident and they say she did not slow down vehicle being in a smoke asian and moving and physically moving there would not have been an accident and frankly that is now that is not the standard we should admit that there are two grounds that this court can affirm the summary judgment or by the trial or and these are the session the questions you placed before yourself number one is there any how can it evidence on a material fact is they're confident evidence not a material fact that should somehow prohibit the coroner in judgment favor of ms google and the second question is which is frankly independent of evidence of negligence of what the defendant is doing independent that is this issue of proximate ca in our brief we addressed it to waste in the courts the cases we've talked about look at it some talk about proximate cause and others apply this term unavoidable collision but almost has come to the same legal final all of the cases i think we cited four or five to this court have all been other vehicles entering the on the right where the principle is exactly the same and frankly yours this is the reason why we're here and i think this is the reason going too slow sees him up there and her and you could talk about all the questions about maybe could she have done something to avoid a child that is in her way of traffic ahead of her and that's not what the case this year that's not with the case this year but all of of them to force you out and and the other physical fact that it comes into play there nine times she has to do anything to avoid the accident and when he's actually still and he runs a cyclist to the side of her car what if anything they're dealing with other situations not not the drought situation they're talking about something that appears suddenly into it what they call you as they call you to the right of way that appears suddenly into the right of way of the vehicle driver  one and then you could argue look out but her going out remember he still there is not moving then what you've looking she says the flash within a flash and for her there is there is frankly in this case a split second or no own statement is there is no captain in evidence on these things they try to argue are redressed lookout and i don't think there's any question about the lookout on her seen the show or at all times when they are stationary and then she also the same logic your honor i respect to submit absolutely applies to this circumstance i would not be arguing it to your honor's if the child is in this school's line of traffic and she's approaching and she sees a child that's a different circumstance and this court well knows every the facts of every case are unique to those cases how much time how much speed and where is the where's the person entering the the right of way and frankly around this crime prob i just want to start by pointing out judge as you correctly observed that this case is not here on a decision in the trial court it's here on summary judgment and frankly i don't believe that if it if we had a decision the trial court that we would be here at this point because i feel like the facts of this  have personally i think is more consistent than with the fact that she was feeding the child at the side of the car i mean to me that would make sense in terms of if the car his r v movie asked because it's going so fast and the kid runs into it instead of hitting the front i mean we're almost arguing that if she had been going the in the trial court but he still are finessing the speak now if she's the one that we have the same witness who says she's going thirty to forty miles per hour and she doesn't slow down doesn't this doesn't all fit together why the kid decided the car if she had slowed down or been i mean we know we know in the case law that she's held to a greater standard of here in the presence of children precisely because you can't assume things like they'll stay in the middle because as i said in my argument children are erratic children are foolish children do foolish things like run out front of cars especially when you're nine years old as far as first the goes the test the only testimony we have within us that have speed it's below the speed limit is from the defendant herself and you know the other really even for a second to look in the mirror we have to ask yourself does that create a factual issue as to whether or not she's violated the standard of care when it comes to scene child in the room when i don't know the answer to that i'm frankly i believe the only person that would be the only entity that would be