#### ZEB HENSON, Administrator of ROBERT DAVID HENSON, v. ARNOLD WILSON, B. B. PENLAND, B. R. PENLAND, PLATO PENLAND, and LUTHER AYERS.

(Filed 26 September, 1945.)

1. Automobiles §§ 8, 9a—

It is a general rule of law that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent man would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator to keep the vehicle under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires the operator to be reasonably vigilant, to anticipate and expect the presence of others, and to see what he ought to have seen.

2. Automobiles § 18g—

In a civil action to recover damages for the alleged wrongful death (G-. S., 28-173, 174) of a child less than eight years of age, where plaintiff’s evidence tended to show that plaintiff’s intestate was on the side of the left side embankment of a narrow road cut, as the loaded truck operated by one of defendants approached him uphill and at a speed of not over five miles per hour, that if he was there the operator of the truck saw him, or by the exercise of ordinary care could and should have seen him, that the operator of the truck had knowledge of the narrowness of the road and of the uneven surface of the road and its effect in making the loaded truck lean to the left, so that collision with, and injury to a child on the left embankment was likely to ensue, while defendants’ evidence contradicted that of plaintiff, issues of fact are raised which the jury alone may decide, and there was error in the court’s allowing a motion for judgment as of nonsuit, when renewed at the close of all the evidence.

Appeal by plaintiff from *Warlich, J.,*at January Term, 1945, of YANCEY. ■ ■

Civil action for recovery of damages for alleged wrongful death, G. S., 28-173, and G-. S., 28-174.

Plaintiff alleges in pertinent part, briefly stated, that on 14 December, 1943, bis intestate, Robert David Henson, a Negro boy less than eight years of age, was killed when an International motor truck which was operated by defendant Arnold Wilson in hauling logs, as agent and servant of his co-defendants, the owners thereof, ran into said intestate as he was walking or standing on the embankment of a cut on a public road with high embankment on each side near Lincoln Park in Yancey County, North Carolina; that at the time defendant Wilson was familiar with the road and knew it to be narrow, with high embankment on each side and • knew that small children who lived in the neighborhood along the road frequently used the road; and that at the time, and with such knowledge *418defendant Wilson recklessly, carelessly and negligently operated said motor truck without due caution and circumspection, and without regard for the safety of person's on the road, and against the embankment on its left side of the road where plaintiff’s intestate was standing or traveling, thereby causing his injury and death, etc.

Defendants in joint answer filed admit that at the time in question defendant Wilson was operating said motor truck in hauling logs as agent and servant of his co-defendants, but deny all allegations of negligence. And for further answer and defense, defendants set up their version of the occurrence and plead contributory negligence of plaintiff’s intestate and of his parents in bar of recovery.

Plaintiff in reply denies the averments of the defendants in their further answer and defense, and pleads the doctrine of last clear chance.

The evidence offered upon the trial in Superior Court tends to show, in the light most favorable to plaintiff, these facts: The road, referred to as “the main road,” on which plaintiff’s intestate was killed, and on which the truck in question was traveling from the log yard at which it was loaded with logs, and leading by the colored Baptist Church, passes in the vicinity of the house of Zeb Henson, the father of Robert David Henson, and intersects with a path or road on the left side leading to the Henson house. From that point the main road continues on steep grade through a cut. The embankment on the left side gradually rises in height above the roadbed to about four feet at the point below which the body of Robert David Henson was found. Through this cut the road is very narrow — from seven to eight feet in width. The surface of the road slopes to the left. The surface on the right side is eighteen inches higher than that on the left. From the point of intersection with the Henson path or road toward the point where Robert David Henson’s body was found the road is straight, the distance being sixty to seventy-five feet, with nothing to obstruct the' view. At that point there is an oak tree on the left side of the road with root ends extending out of the embankment of the cut. Near-by there is another tree. There is a wire fence on top of the embankment. There is practically no space between the wire fence and the edge of the cut.

The bed of the truck in question is about seven feet wide, and wider than the cab. And in respect thereto, the helper on the truck as witness for defendants, testified, “This road is what might be called a cut. A high bank on the right and bank on the left. That road is just wide enough for one motor vehicle to travel at a time. It’s so narrow we had to raise the mirror on the left side of the truck ... In traveling over this road we went in same direction each trip. The wheels on our vehicle cut right along the foot of the embankment. The road is lower on the left than on the right. With a load of logs like we had that trip, the *419truck pitched towards tbe left of tbe road. Tbe sides of our truck and logs bad bit tbe roots where they were sticking out, that is, tbe roots of tbe tree where Eobert David Henson was found.” Also there was evidence that tbe body of Eobert David Henson was found “lying up and down tbe route which tbe truck bad made,” on tbe left side of tbe road “under tbe tree with bis bead a little up tbe bill,” and that a piece of bis overalls and some of bis hair were seen on tbe roots of tbe tree. Furthermore, all tbe evidence tends to show that tbe truck was going uphill, at slow speed not over five miles per hour, described by defendant Wilson as “traveling in bulldog and dual gear — 4 to 5 miles per hour.” Plaintiff's witness put tbe speed at from 2 to 5 miles per hour. And witness for defendants testified: “At tbe speed we were going, tbe load on tbe truck and tbe condition of tbe road, that truck could have been stopped suddenly.”

Plaintiff’s witness, Lester Young, gave a narrative, substantially as follows : “I was at borne on tbe 14th day of December, 1943. My borne is about as near to tbe place where Eobert David Henson was killed as from here across tbe street. I saw tbe truck driven by Arnold Wilson coming up tbe road. I saw it before it got to tbe curve of tbe road, below where tbe little boy was killed. I was sitting at tbe window . . . and tbe truck came and two little boys were running along the side of it and one of them caught tbe truck; that was tbe least boy . . . not Eobert David Henson. Eobert David Henson ran on by tbe truck to tbe bars. He ran around tbe big oak standing at tbe bars and got between another tree there and tbe big oak. He was standing there and tbe truck hadn’t yet go.t to him. Tbe truck pulled on pretty close to him and I beard my kids boiler to run, and turned my bead . . . and when I looked around Eobert David was gone . . .” Then in answer to question, “Tell us just bow be was standing at tbe time you saw him,” tbe witness said, “It looked like-it was from here up . . . from bis waist up was above tbe top of tbe bank.” And same witness continuing: “Eobert David was on tbe left side of tbe road, bis left side and driver’s left side. There’s a barbed wire fence along tbe edge of tbe embankment. There is no kind of a path between tbe fence and tbe embankment. . . . Tbe little boy was still standing there when tbe cab and driver were against him. It looked like you could almost touch tbe little boy. Then I turned my bead ... I looked back and didn’t see him ... I beard some screams. I saw tbe truck pulling on up tbe road. No other person or vehicle passed by this point from tbe time I saw tbe boy standing on tbe side of tbe bank until I turned my bead back . . .” Then same witness, continuing on cross-examination, said: “Tbe last time I saw tbe little boy be was standing right about middleways of tbe two oak trees. He was not on top of tbe bank. Tbe fence was between Eobert David Henson *420and me. And the fence is right along the top of the bank . . . The trees stood right on the edge of the bank, and the roots stick out at the point where he got killed ... I saw the truck when it pulled up where the little boy was standing and when it got on up there ... I saw the little boy standing there on the bank before the truck got to him . . . The last time I saw Eobert David, he was standing on the embankment,'he was between the top edges of the two banks. I could see from his waist up; he might have been down in the road ... I couldn’t tell whether he Avas doAiui in the road or hunkering down on the bank. I could not tell whether he was in the roadbed or where. When I saw him the truck was coming np in his direction.”

There is also eAddence that Eobert David Henson was “around seven years old” and about three feet tall.

Defendants on the other hand offered eAddence tending to show an entirely different version as to how Eobert David Henson came to his death.

Motion of defendants for judgment as of nonsuit at close of plaintiff’s evidence was overruled, but like motion at close of all the evidence was allowed, and in accordance therewith judgment was signed.

Plaintiff appeals therefrom to Supreme Court and assigns error.

*Bill Atkins for plaintiff, appellant.*

*Watson & Fouis for defendants, appellees.*

Winborne, J.

It is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires that the operator must be reasonably vigilant, and that he must anticipate and expect the presence of others. *Hobbs v. Coach Co., ante,*323, 34 S. E. (2d), 211, and eases cited.

Moreover, it is said in *Wall v. Bain,*222 N. C., 375, 23 S. E. (2d), 330, “It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel, and he is held to the duty of seeing what he ought to have seen.”

In the light of these principles applied to the evidence in the case in hand, we are of opinion and hold that the evidence taken in the light most favorable to plaintiff, is of sufficient probative force to take the case to the jury. The evidence is susceptible of findings by the jury: (1) *421That plaintiff’s intestate, Robert David Henson, was on tbe side of tbe left side embankment of tbe road cut, as tbe truck operated by defendant Wilson approached bim; (2) that if be were there, tbe operator of tbe truck saw bim, or by tbe exercise of ordinary care could and should have seen bim; (3) that tbe operator of tbe truck bad knowledge of tbe narrowness of tbe road and of tbe uneven surface of tbe road and its effect upon tbe loaded truck in relation to tbe left side embankment; and (4) that collision with, and injury to a child on such left side embankment was likely to ensue. If tbe jury should so find tbe facts to have been, from tbe evidence, and by its greater weight, it was tbe duty of tbe operator of tbe truck to exercise ordinary care to avoid collision with tbe child, and bis failure to do so would be negligence.

On tbe other band, defendants controvert tbe evidence of tbe plaintiff. That raises an issue of fact which alone tbe jury may decide. And we here express no opinion upon tbe weight of evidence. That is for tbe jury.

Tbe judgment below is

Reversed.