Albritton v. Hill

• Decision Date: 04 November 1925
• Docket Number: 107.
• Parties: ALBRITTON v. HILL.
• Court: North Carolina Supreme Court

130 S.E. 5

190 N.C. 429

ALBRITTON v. HILL.

No. 107.

Supreme Court of North Carolina

November 4, 1925

Appeal from Superior Court, Wayne County; Lyon, Judge.

Action by Mrs. Libby Albritton, as administratrix of the estate of Leo Albritton, deceased, against R. F. Hill and the Wayne Highway Commission. A demurrer interposed by defendant Highway Commission was sustained, and the action proceeded against defendant Hill only. From an adverse judgment defendant Hill excepts and appeals. No error.

A demurrer filed by the Wayne highway commission, formerly a party defendant, was sustained, and the action was prosecuted against the defendant Hill. The jury found that the plaintiff's intestate was injured and killed by the negligence of the defendant, and assessed damages. Judgment for plaintiff; exception and appeal by defendant.

Reception as contradictory evidence of conversation of witness as to speed at which he said defendant was driving car held not error.

Langston Allen & Taylor, of Goldsboro, and Rouse & Rouse, of Kinston for appellant.

Sutton & Greene, of Kinston, D. H. Bland, of Goldsboro, and Douglass & Douglass, of Raleigh, for appellee.

ADAMS J.

On April 15, 1920, at 7 p. m., the defendant and five others including the deceased, left Raleigh on their return to Kinston. They were traveling in a Winton car driven by the defendant, but, according to his testimony, owned by his wife. At a place on the highway about 9 miles west of Goldsboro the highway commission had removed a bridge for the purpose of constructing a culvert, and had made a detour almost on a line with the public road. In the forenoon of the same day the defendant had driven the car over this detour on his trip to Raleigh. The plaintiff alleged that the defendant operated the car at a dangerous rate of speed, and in a reckless, negligent, and unlawful manner, and thereby caused it to bound off the highway, turn over, and bring about the intestate's injury and death. With respect to the negligence of the highway commission, the plaintiff alleged that it had carelessly left the culvert open and unguarded, and had negligently failed to provide lights or other sufficient warning as to the condition of the road; and, further, that the unlawful conduct of both defendants, namely, the fast, reckless, dangerous, and unlawful speeding of the car by the defendant, and the negligence of the highway commission in leaving the culvert open and unguarded, was the efficient and proximate cause of the intestate's death. In his answer the defendant denied the material allegations of the complaint, and alleged that the deceased at the time of the injury was a voluntary occupant of the car, and was as fully informed as the defendant concerning the condition of the culvert, the speed of the car, and other attendant circumstances, and uttered no word of warning, caution, or remonstrance; and that in this way the negligence of the deceased contributed to his injury and death.

The defendant first contends that his motion for nonsuit should have been allowed; but we have failed to discover any sufficient cause for dismissing the action. The statute in force at the time of the injury limited the speed of motor vehicles to 25 miles an hour (C. S. § 2618); but there is evidence for the plaintiff, though contradicted by the defendant, that the defendant was running the car at a reckless rate of speed, one witness saying 50 and another 70 miles an hour, just before the injury occurred. This and other evidence, which we need not set out in detail (C. S. § 2616), tended to show a breach of more than one statute. A breach of either is negligence per se; the causal relation between the alleged negligence and the injury being, of course, a question for the jury. Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066; McNeill v. R. R. 167 N.C. 390, 83 S.E. 704; Clark v. Wright, 167 N.C. 646, 83 S.E. 775; Zageir v. Express Co., 171 N.C. 692, 89 S.E. 43; Dunn v. R. R., 174 N.C. 254, 93 S.E. 784; Ridge v. High Point, 176 N.C. 421, 97 S.E. 369; Newton v. Texas Co., 180 N.C. 561, 105 S.E. 433; Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466.

We do not agree with the defendant in saying there is no allegation that the defendant's negligence was the proximate cause of the injury, for there are distinct allegations as to the defendant's negligent acts and as to those of the highway commission. In reference to concurrent negligence we have held that, where two proximate causes contribute to an injury, the defendant is liable, if his negligent act brought about one of such causes. Mangum v. Railroad, 188 N.C. 689, 125 S.E. 549; Hinnant v. Power Co., 187 N.C. 288, 121 S.E. 540; White v. Realty Co., 182 N.C. 536, 109 S.E. 564; Wood v. Public Service Corp., 174 N.C. 697, 94 S.E. 459, 1 A. L. R. 942; Harton v. Telephone Co., 141 N.C. 455, 54 S.E. 299. We have also held that...