Baldwin v. Smitherman
| Decision Date | 24 May 1916 |
| Docket Number | 483. |
| Parties | BALDWIN v. SMITHERMAN. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Montgomery County; Lane, Judge.
Action by John Baldwin against Noah W. Smitherman. From a judgment for defendant, plaintiff appeals. No error.
The action was to recover damages for breaking the leg of plaintiff's mule by alleged negligence of defendant in operating an automobile. On denial of liability and on the issue as to negligence, there was verdict for defendant. Judgment on the verdict for defendant, and plaintiff excepted and appealed.
Where all conditions attendant on injury of mule by automobile were fully testified to by witnesses, case being properly made to depend upon whether account given by plaintiff or by defendant's witnesses should prevail, doctrine of res ipsa loquitur was not available to plaintiff on appeal.
Dockery & Wildes, of Troy, for appellant.
W. A Cochran, of Troy, for appellee.
The evidence on the part of plaintiff tended to show that in October, 1914, while plaintiff was riding his mule along the public road running from Troy to Biscoe, he was negligently run into by defendant, operating an automobile, and that the mule's leg was broken, so that it had to be killed. There was also evidence to show that the machine of defendant was without any or without proper brakes, and on this account defendant was unable to control his car, and this was one of the reasons for the occurrence. The evidence of the defendant tended to show that on the occasion in question defendant was running an automobile along the road at six or seven miles an hour; that plaintiff was on his mule at or near the middle of the road, giving no indication of fright, and as defendant was in the act of passing plaintiff and his mule plaintiff gave him a jerk, and for this or some other reason the animal suddenly commenced backing towards the machine, and backed directly against it, causing the collision and consequent injury; that the machine was well equipped with brakes, etc and was under perfect control at the time, and defendant made every effort to avoid hurting the mule, but was unable to do so by reason of the unexpected movement back towards defendant's machine. Under a correct and adequate charge the jury have accepted the account presented by defendant's evidence, and, this being true, it is clear that no recovery is permissible.
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Etheridge v. Etheridge
... ... 252], it does not apply "(1) when all the ... facts causing the accident are known and testified to by the ... witnesses at the trial, Baldwin v. Smitherman, 171 ... N.C. 772, 88 S.E. 854; Orr v. Rumbough, 172 N.C ... 754, 90 S.E. 911; Enloe v. [ Southern] R. Co., 179 ... N.C. 83, 101 ... ...
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Clodfelter v. Wells
... ... ordinarily it does not apply when all the facts causing the ... accident are known and testified to by the witnesses at the ... trial. Baldwin v. Smitherman, 171 N.C. 772, 88 S.E ... 854. The general rule stated in Huddy on Automobiles, § 373, ... is quoted with approval in Springs v ... ...
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Brady v. Southern Ry. Co.
... ... prima facie case of actionable negligence, and carry the case ... to the jury on the theory that "the thing itself ... speaks." Baldwin v. Smitherman, 171 N.C. 772, ... 88 S.E. 854; White v. Hines, 182 N.C. 275, 109 S.E ... 31; Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11 ... ...
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Heffter v. Northern States Power Company
... ... by defendant's witnesses should prevail. Hence the maxim ... was without application. Baldwin v. Smitherman, 171 ... N.C. 772, 88 S.E. 854. The evidence of either party was ... sufficient in law if it was sufficient in fact. There was a ... ...