The defendant puts his chief emphasis on this appeal on his exception to the refusal of his motion for judgment of involuntary nonsuit under G.S. 1-183. He asserts the motion ought to have been *776allowed either on the ground that there was no sufficient evidence of actionable negligence on the part of the driver of his truck, or on the ground that the plaintiff’s intestate was guilty of contributory negligence as a matter of law.
In passing upon a motion for a compulsory nonsuit under the statute, the court must assume the evidence in behalf of the plaintiff to be true and must extend to the plaintiff the benefit of every fair inference which can be reasonably drawn therefrom by the jury in favor of the plaintiff. Swink v. Horn, 226 N. C. 713, 40 S. E. (2) 353; Buckner v. Wheeldon, 225 N. C. 62, 33 S. E. (2) 480; Adkins v. Transportation Co., 224 N. C. 688, 32 S. E. (2) 209. We must measure the evidence by this criterion.
The law imposes upon a motorist the duty to exercise due care to avoid injuring children whom he may see, or by the exertion of reasonable care should see, on or near the highway. Sparks v. Willis, 228 N. C. 25, 44 S. E. (2) 343; Moore v. Powell, 205 N. C. 636, 172 S. E. 327; Goss v. Williams, 196 N. C. 213, 145 S. E. 169; S. v. Gray, 180 N. C. 697, 104 S. E. 647. In so doing, he must recognize that children have less discretion and capacity to shun danger than adults, and are entitled to a care proportionate to their inability to foresee and avoid peril. Yokeley v. Kearns, 223 N. C. 196, 25 S. E. (2) 602. Due care may require a motorist in a particular situation to anticipate that a child of tender years, whom he sees on or near the highway, will attempt to cross in front of his approaching automobile unmindful of the attendant danger. Fox v. Barlow, 206 N. C. 66, 173 S. E. 43.
The “Stop Signal” of the bus involved here had been withdrawn, and the bus itself had been put in motion just before the defendant’s truck met the bus. In consequence, the testimony did not support a conclusion that the driver of the truck had violated the letter of the statute embodied in G.S. 20-217, which was enacted by the Legislature for the manifest purpose of saving children boarding or alighting from school busses from injury or death at the hands of approaching motorists.
But the evidence tends to show that the tragedy happened on the afternoon of a school day, and that the driver of the defendant’s truck approached the scene before the school bus was put into motion and in time to see it standing on the highway with its stop sign fully displayed. This constituted a danger signal, and was sufficient to give the driver of the truck notice that in all probability children were alighting from the bus and would be on or near the highway as he passed, and placed him under the legal duty of proceeding in such a manner and at such a speed as were reasonably calculated to enable him to avoid striking any child who might attempt to cross the highway.
Hence, the jury might reasonably have drawn these inferences from the evidence, namely : (1) That the driver of the defendant’s approaching *777truck saw, or by the exercise of due care should have seen, the plaintiff’s intestate, a small boy of tender years, alight from the school bus and take a position on the dirt shoulder east of the paved portion of the road; (2) that the driver of the truck anticipated, or by the exercise of reasonable care should have anticipated, that the plaintiff’s intestate would undertake to cross to the west side of the road the instant the school bus and the automobiles following in its track cleared the pavement before him oblivious of the peril of the defendant’s approaching truck; (3) that notwithstanding such knowledge or means of knowledge, the driver of the defendant’s truck met and passed the school bus and the trailing automobiles in a negligent manner in that he drove the truck at a speed greater than was reasonable and prudent under the conditions then existing, or in that he failed to keep a proper lookout, or in that he failed to have the truck under reasonable control, or in that he failed to give the intestate warning of the approach of the truck by sounding his horn when due care under the existing circumstances required such warning; and (4) that such negligence of the driver of the truck proximately caused the death of the intestate while he was attempting to cross to the west side of the road. Thus, the trial judge properly left to the decision of the jury the question of the actionable negligence of the operator of the defendant’s truck. Morgan v. Coach Co., 228 N. C. 280, 45 S. E. (2) 339; Smith v. Miller, 209 N. C. 170, 183 S. E. 370.
The same observation applies to the question of whether the plaintiff’s intestate was guilty of contributory negligence. Under the pertinent decisions, this was a question of fact to be answered by the jury in the light of the intelligence, age, and capacity of the intestate. Morgan v. Coach Co., supra; Manheim. v. Taxi Corp., 214 N. C. 689, 200 S. E. 382; Leach v. Varley, 211 N. C. 207, 189 S. E. 636.
The charge is free from error. Indeed, the court declared and explained the law of the case with highly commendable accuracy and clarity.
In closing, we deem it not amiss to quote these words of caution to motorists from a decision of the Supreme Court of Pennsylvania: “Children are capricious. They act heedlessly without giving the slightest warning of their intentions. They dart here and there with the exuberance of youth. No law or edict of court will stop them; we shall not attempt to do so, but rather warn those vdio may meet them to be on the lookout.” Frank v. Cohen, 288 Pa. 221, 135 A. 624
Because we find in law7 no error, the judgment of the Superior Court is affirmed.
No error.