
90 S.E.2d 706 (1956)
243 N.C. 425
Grady POPE, by his Next Friend, Vernie Pope
v.
Theodore R. PATTERSON.
No. 530.
Supreme Court of North Carolina.
January 13, 1956.
*707 C. M. Llewellyn, Anne L. Greene and M. B. Sherrin, Jr., Concord, for plaintiff, appellant.
E. R. Alexander, Kannapolis, and E. T. Bost, Jr., Concord, for defendant, appellee.
PARKER, Justice.
The sole contention of the defendant is that the plaintiff has not offered sufficient evidence of actionable negligence on the part of the defendant to carry the case to the jury.
It has been repeatedly declared by this Court that a legal duty rests upon a motorist to exercise due care to avoid injuring children whom he sees, or by the exercise of reasonable care should see, on or near the highway. Pavone v. Merion, 242 N.C. 594, 89 S.E.2d 108; Hawkins v. Simpson, 237 N.C. 155, 74 S.E.2d 331; Sparks v. Willis, 228 N.C. 25, 44 S.E.2d 343; Moore v. Powell, 205 N.C. 636, 172 S.E. 327; Goss v. Williams, 196 N.C. 213, 145 S.E. 169.
A motorist must recognize that children have less judgment and capacity to appreciate and avoid danger than adults, and that children are entitled to a care in proportion to their incapacity to foresee, to appreciate and to avoid peril. Pavone v. Merion, supra; Greene v. Mitchell County Board of Education, 237 N.C. 336, 75 S.E.2d 129; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602.
In Sparks v. Willis, supra [228 N.C. 25, 44 S.E.2d 344], Devin, J., said for the Court: "It has been frequently declared by this Court to be the duty of one driving a motor vehicle on a public street who sees, or by the exercise of due care should see, a child on the travelled portion of the street or apparently intending to cross to use proper care with respect to speed and control of his vehicle, the maintenance of vigilant lookout and the giving of timely warning, to avoid injury, recognizing the likelihood of the child's running across the street in obedience to childish impulses and without circumspection."
In a particular situation due care may require a motorist to anticipate that a child of tender years, whom he sees on the highway, will attempt to cross in front of an approaching automobile, unmindful of danger. Hughes v. Thayer, supra; Fox v. Barlow, 206 N.C. 66, 173 S.E. 43.
Lucas v. Bushko, 314 Pa. 310, 171 A. 460, 461, was an action against a motorist for striking a nine-year-old child riding on a tricycle on a road. The Supreme Court of Pennsylvania said: "`Where an automobile driver sees a child in a place of danger, or has reason to apprehend that it might *708 run into a place of danger, and has sufficient time to stop his car if under proper control, it is his duty to exercise such care as would be reasonably necessary to avoid a collision.'" In that case the defendant's car was travelling west on the highway and stopped within its own length after striking the child. The Supreme Court of Pennsylvania reversed the trial court, and held it was a case for the jury.
When the defendant was 400 feet away, he saw Grady Pope pushing a homemade toy wagon, in which Larry Wayne Beach was riding, across the highway. He saw they were children, and must have known that the boy in the toy wagon was a small child. The toy wagon was being pushed from the north side of the highway diagonally across it in a southeasterly direction. The boys were going in the same direction as the defendant was, and it is a reasonable inference that Grady Pope's back was to the defendant, for he says when he had pushed the wagon to the middle of the road, or a little farther, he looked back. There were no obstructions on the highway, and nothing to interfere with the defendant's vision. These boys were on the highway, where they had a right to be, in plain view, and it was incumbent upon the defendant to have his car under such control as to be prepared for such rash movements as might be expected of these boys. Although the defendant's car stopped in a short distance after striking Grady Pope, and although there is no evidence as to the speed of the defendant's car, yet the fact remains that his car struck and injured this boy whom he had seen in plain view for 400 feet on the road before striking him, and when the boy was almost off the pavement.
It would seem that the defendant cannot avail himself of the doctrine of sudden emergency, for as Winborne, J., said in Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 419, 42 S.E.2d 593, 598: "The principle is not available to one who by his own negligence has brought about, or contributed to the emergency."
We feel that it is a question for the jury under proper instructions to say as to whether or not the defendant exercised due care to avoid injuring Grady Pope, whom he saw on the highway.
The judgment of the lower court is
Reversed.
HIGGINS, J., took no part in the consideration or decision of this case.
