Bechtler v. Bracken

• Decision Date: 27 November 1940
• Docket Number: 526.
• Citation: 11 S.E.2d 721,218 N.C. 515
• Parties: BECHTLER v. BRACKEN et al.
• Court: North Carolina Supreme Court

11 S.E.2d 721

218 N.C. 515

BECHTLER v. BRACKEN et al.

No. 526.

Supreme Court of North Carolina

November 27, 1940

This is an action brought by the plaintiff, administrator of the estate of Cynthia Bechtler, against the defendants as joint tort-feasors for killing his child, the intestate, a young girl about four years of age. The defendants denied negligence.

C. M Sloop, witness for plaintiff, testified, in part: "I live at 132 Bruns Avenue and have lived in Charlotte about 23 years.

On September 2, 1939, Mr. James Bechtler and I were working for Southeastern Magnesia and Asbestos Company. On September 2 1939, I was driving my automobile from Durham to Charlotte when we had a wreck seven miles south of Lexington on the way to Salisbury. The wreck occurred about 3:30 in the afternoon. In my automobile were Horace Shue, sitting on the front seat with me, and Mr. and Mrs. Bechtler and their daughter Cynthia Bechtler, sitting in the back seat. The highway runs in a general north and south direction. I was going south towards Charlotte. The wreck occurred just south of the bridge. North of the bridge the road is straight for approximately 900 to 1,000 feet with a slight downgrade to the bridge; the bridge is approximately 150 feet long; south of the bridge there is about a 400-foot straightway then a curve to the left or east, going south; on the south the grade up from the bridge is a little steeper than on the north. The highway is a hard surface of tar and gravel construction, approximately 18 feet wide with shoulders on each side from 5 to 6 feet wide. The width of the bridge is the same as the hard surface, 18 feet. As I approached the bridge from the north I saw the truck of Gibson Ice Cream Company on the south side moving in a north direction coming toward me. There were some few cars behind it; I did not pay particular attention to just how many. I entered the bridge at approximately 30 to 35 miles an hour. There was no traffic ahead of me on my side of the road nor was there any vehicle between me and the truck on its side. As I entered the bridge on the north end the truck was about 150 feet from the southern end. As I left the southern end of the bridge the truck was within 4 or 5 feet of the bridge on my left or its right side. The truck was approximately 80 inches wide, from 12 to 15 feet long and about 7 feet high. The body of the truck was of solid construction, the cab was just like an ordinary truck cab inside the edge of the body. The driver sat in the cab and just back of his head was the cab part of the truck. I do not know whether there was glass in the back of the cab or not, but he couldn't see through it; it was an ice cream refrigeration truck. I passed a part of the truck; it was stopped, or practically stopped I did not see which. I did not see the driver give any signal indicating that he was going to stop prior to the time I got to the position where the truck was. The front of my automobile was about 4 feet past the rear of the truck at the time it was struck. At the time my automobile was struck every part of my automobile was to my right of the center of the highway. My right front wheel was off the pavement on the right-hand dirt shoulder. Just before I got to the back of the truck, Mr. Bracken's car came right over toward my car, and I tried to miss him. Just as the Bracken car came out from behind the truck I cut to the right to try to keep him from running into me, and he struck the left front wheel and did most of the damage to the door and the rear part of my car, and that threw me over the embankment. When the collision occurred the part of my car nearest the center line was a good 2 1/2 to 3 feet right of the center and the left front wheel of the Bracken car was over to the left of his center of the road at least 2 1/2 to 3 feet. On my right immediately adjoining the road on the west side was an embankment. When the Bracken car ran into my car my car was thrown down this embankment. After I got out of my car I came back up on the highway. The Bracken car was still right where the two cars hit, over on my center of the road about 3 feet he had not moved it. It was a 6 or 7-foot embankment, but my car did not turn over. It was a coach with one door on each side. The left door was damaged to the extent that it would not stay closed, and flopped around. Cynthia Bechtler who was with her parents in the rear seat of the car was thrown out of the car when it went down the embankment and the door sprang open. I was the first one to get to the child. It was within 3 or 4 feet of the car on the left side of the car lying on some rock on the ground. I picked the child up and handed her to her father and told him to take her to the hospital. I think she was dead. *** There were some few cars behind the truck, but I naturally noticed the truck, it being the bigger. When the front of my car was approximately 4 feet behind the truck the Bracken car came out from behind the truck onto my side of the road and hit my car. It happened so quick I did not pay any attention to whether he skidded or not and I did not hear any brakes. I couldn't judge his speed, but I imagine a very slow rate of speed. The Bracken car did not stop in its tracks but struck the front of my car, plowed into the side of it, and did most of the damage to the back of the car. He never got upon the bridge. I did not see the driver of the truck make any signal. There is a slight grade on each side of the bridge. The pavement was dry, of asphalt construction. *** I had very little opportunity to put on my brakes. It was so sudden out from behind the truck, right in my face, and brakes were useless."

J. L. Evans, witness for plaintiff, testified, in part: "(Mr. Robinson, Now, if your Honor please, we want to introduce some declarations or statements made by Mr. Bracken. We concede that it would not be competent against the Ice Cream Company.--The Court: No, it would not be competent against the other defendant.) I talked to Mr. Bracken. He said he passed the ice cream truck about 3 miles down the highway then came up the highway about 2 miles and the truck passed him, this being about a mile from the bridge where the wreck happened. Mr. Bracken said that he followed behind the truck for the last mile; that the truck got to the bridge and stopped in front of him; that he was too close to the truck, and rather than hit the back of the truck that he, Bracken, pulled out to the left to take a chance to pass."

Mrs. B. Marvin Bracken, witness for plaintiff, testified, in part: "I live at 616 North Church Street, Charlotte, and I am the wife of Marvin Bracken, one of the defendants. On September 2, 1939, I was in the automobile with my husband sitting on his right on the front seat. We were proceeding north. I first observed the ice cream truck when it passed our car about 2 miles south of North Potts Creek. We trailed the truck for that distance to the bridge, and I was conscious of it in front of me part of the way. I do not recall any vehicle between us and the truck. There is a curve just before you reach the bridge. We made this curve, and I was conscious that the ice cream truck was a little distance ahead of us. It was a white truck. When we were about 25 feet from the south edge of the bridge the truck stopped. I saw it stop. It stopped suddenly, very quickly, I was sitting on the right and did not see any signal. *** When Mr. Bracken jerked our car out we were about 30 to 35 feet back of the truck. The truck stopped quick but I did not see it skid down the road a piece. I did not see him applying his brakes. When I saw the truck stopped we were about 30 or 35 feet behind it. When my husband put on the brakes we kept going, but our speed was less. We did not pass the back end of the truck but came to a stop with our left front axle resting on the ground about a foot across the center line."

James A. Bechtler, plaintiff, administrator, testified, in part: "I was in the automobile driven by Mr. Sloop on September 2, 1939. Mr. Sloop, Mr. Shue and I were working on the new American Tobacco Company building in Durham and were returning to Charlotte for Labor Day. I was sitting on the right-hand side of the rear seat with my wife and baby girl, who was 4 years and 2 months old. As we were driving south and left the south end of the bridge the ice cream truck was about 3 to 5 feet from the south end. It had stopped or was practically stopped. I did not see the driver of the truck put his hand out the side of the truck or give any other signal that he was going to stop. The collision between the left front wheels of the two cars occurred about 4 feet back of the truck. The end of the truck was about the center of our car. At the time of the collision the Sloop car was as far to the right as we could get. The left front side of the Sloop car was struck by Bracken's left front side. To the right of our car at the south end of the bridge was a shoulder and then a slope between 5 and 8 feet high. Mr. Sloop picked up my baby; I got out on the right side of the car and did not see where she was lying. I went around the car and said "Give her to me". I thought she was living but she wasn't breathing, it was just the blood gushing out of her nose. She had never been sick a day in her life except for whooping cough. She was extra bright and was my only child."

On the trial in the court below, the defendant Bracken introduced evidence which we do not now consider as he was granted a new trial. The defendant Gibson Ice Cream Company introduced no evidence.

The issues submitted to the jury, and their answers thereto, were as follows:

"1. Was the plaintiff's intestate injured and killed by the negligence of the defendant B. Marvin Bracken, as alleged in...