Beach v. Patton

• Decision Date: 10 April 1935
• Docket Number: No. 308.,308.
• Citation: 208 N.C. 134,179 S.E. 446
• Court: North Carolina Supreme Court
• Parties: BEACH. v. PATTON et al.

179 S.E. 446

208 N.C. 134

BEACH.

v.PATTON et al.

No. 308.

Supreme Court of North Carolina.

April 10, 1935.

Appeal from Superior Court, Burke County; Harding, Judge.

Action by W. W. Beach, administrator of the estate of C. J. Beach, deceased, against F. E. Patton and others. From a Judgment of nonsuit as to defendant W. O. Riddick, plaintiff appeals.

Affirmed.

The plaintiff is the duly appointed administrator of C. J. Beach, deceased, whose death was caused by being struck by a Plymouth automobile, the property of the defendant Grace Patton and driven by the defendant F. E. Patton on highway No. 10 on the night of December 16, 1933. The intestate was standing on the shoulder of the highway when the automobile driven by Patton at a negligent rate of speed was forced, in order to avoid a collision therewith, to go around a Ford automobile belonging to the defendant W. O. Riddick; and the plaintiff alleges and contends that the defendant W. O. Riddick negligently allowed his said Ford automobile to remain parked on the highway for a space of some fifteen minutes after it had collided with a certain Buick automobile occupied by "two ladies, " and that the negligence of the defendant Riddick in allowing his car to remain so parkedupon a much used highway on a damp dark night was a proximate cause of the death of his intestate.

At the close of the evidence, upon motion of the defendant Riddick, the court entered a judgment as of nonsuit as to him, and the plaintiff excepted and appealed to the Supreme Court, assigning errors. Upon the entering of the involuntary nonsuit as to the defendant Riddick, the plaintiff submitted to a voluntary nonsuit as to the defendants F. E. Patton and Mrs. Grace Patton.

Mull & Patton, of Morganton, for appellant.

Zeb V. Nettles, of Asheville, for other appellees.

Ervin & Ervin, of Morganton, for appellee W. O. Riddick.

SCHENCK, Justice.

The only allegation of negligence against the defendant Riddick was that his car was left parked for some fifteen minutes on a damp dark night on a much used highway after it had been engaged in a collision. Assuming, but not deciding, that the defendant Riddick was negligent in so leaving his car parked on the highway, there is no evidence that such negligence was the proximate cause of the death of plaintiff's intestate, and the establishment of the fact that the negligence of the defendant was the proximate cause of the death of the intestate is just as essential to the plaintiffs cause of action as is the establishment of the negligence itself. Campbell v. Laundry, 190 N. C. 649, 130 S. E. 638, and cases there cited. This case as it relates to the defendant Riddick is governed by the principle of the case of Burke, Adm'r, v. Coach Company and Cape-heart, 198 N. C. 8, 150 S. E. 636, as it...