Bennett v. Young, 693

• Decision Date: 14 January 1966
• Docket Number: No. 693,693
• Citation: 266 N.C. 164,145 S.E.2d 853
• Court: North Carolina Supreme Court
• Parties: Margaret J. BENNETT, Administratrix of the Estate of Commodore Willis Jones, v. James H. YOUNG, J. C. Anderson and L. A. Reynolds Company, Jointly and Severally.

Page 853

145 S.E.2d 853

266 N.C. 164

Margaret J. BENNETT, Administratrix of the Estate of Commodore Willis Jones, v. James H. YOUNG, J. C. Anderson and L. A. Reynolds Company Jointly and Severally.

No. 693.

Supreme Court of North Carolina.

Jan. 14, 1966.

A. L. Meyland and H. H. Issacson, Greensboro, for plaintiff appellant. Block, Meyland & Lloyd, Greensboro, and Clarence C. Boyan, High Point, of counsel.

Booth, Osteen, Fish & Adams, Greensboro, for defendant appellees J. C. Anderson and L. A. Reynolds Co.

Cooke & Cooke, Greensboro, for defendant appellee James H. Young.

Lake, Justice.

In reviewing the ruling of the trial judge upon the separate motions of the defendants for judgment as of nonsuit, we are required, as was he, to consider the plaintiff's evidence in the light most favorable to her, resolving all conflicts therein in her favor, drawing therefrom all reasonable inferences favorable to her and disregarding all evidence by the defendants tending to show a situation or a course of action contrary to that shown by the plaintiff's evidence so interpreted. Moss v. Tate, 264 N.C. 544, 142 S.E.2d 161; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. If, when so considered, it is sufficient to support a finding by the jury that one of the defendants, or a person for whose negligent act or omission such defendant is responsible, was negligent and that such negligence was a proximate cause of the death of the plaintiff's intestate, the motion of that defendant for judgment of nonsuit should have been denied, unless the evidence, so interpreted, shows contributory negligence by the plaintiff's intestate so clearly that no other inference may be reasonably drawn therefrom. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292; Strong, N. C. Index, Negligence, § 26.

The plaintiff's evidence, if believed, as it must be upon this motion, tends to show that her intestate was directed by his employer's superintendent to drive a grade stake at the precise point where he was driving it when struck by the truck. He and the superintendent had been walking together from point to point, the superintendent directing him where to put the respective stakes and the plaintiff's intestate driving them pursuant to such instructions. As each stake was driven they had been walking together to the next location. On this occasion, the superintendent walked on toward the place where the next stake was to be driven before the plaintiff's intestate had finished the driving of the stake at the point behind the truck of the defendant Young. When the superintendent turned to look back he was surprised to find that the plaintiff's intestate was not walking with him. From this it may reasonably be inferred that the plaintiff's intestate was equally unaware of the fact that his superintendent was no longer standing nearby, observing the driving of the stake and the truck behind which he had instructed the plaintiff's intestate to go. Under these conditions we cannot say, as a matter of law, that the plaintiff's intestate was negligent in going behind the truck to drive the stake or in driving it with his back turned toward the truck, which was not moving when he stepped behind it. Whether his doing so under these circumstances was a failure by him to sue reasonable care for his own safety, and one of the proximate causes of his injury and death, is a question for the jury, if it reaches the issue of contributory negligence.

Laws, the driver of the truck, was originally made a party defendant to this action. However, he could not be found for the service of summons and the trial of the action proceeded as if he had not been made a party. He was not present at the trial, so the record does not contain any testimony by him as to what he did, or did not do, in the operation of the truck.

It being alleged in the complaint and admitted by Young in his answer that Laws was operating the truck in the course of his employment by Young, Young is responsible for the negligence of Laws, if any, in such operation.

The evidence of the plaintiff, interpreted as it must be upon Young's motion for judgment of nonsuit, tends to show that Laws backed the truck without blowing the horn or giving any other signal of his intent to do so and that the rear view mirrors on each side of the truck would not disclose to Laws what, if anything, was in the area immediately behind the truck, this being the area in which the plaintiff's intestate was driving the stake. Although there is nothing to indicate that Laws actually knew anyone was, or had been, behind the truck, there is evidence that a number of workers were on the construction site and it might be inferred that the presence of one of them at any part of the site could be anticipated from time to time.

In Adams v. Beaty Service Co., 237 N.C. 136, 142, 74 S.E.2d 332, 336, after observing that it is not negligence per se to back an automobile on the highway, Winborne, J., later C. J., said for the Court:

'And while the law does not forbid the backing of an automobile upon the streets and highways, and to do so does not constitute negligence, the driver of an automobile must exercise ordinary care in backing his machine so as not to injury others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured.'

In Wall v. Bain, 222 N.C. 375, 379, 23 S.E.2d 330, 333, Seawell, J. observed that backing a motor vehicle upon the highway is 'an operation which involved a greater danger than ordinary travel,' and that no reasonable person would drive in that manner for any length of time. He then said, for the Court:

'The requirements of prudent operation are not necessarily satisfied when the defendant 'looks' either preceding or during the operation of his car. It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen.'

This rule has been quoted with approval many times by this Court. Greene v. Meredith, 264 N.C. 178, 141 S.E.2d 287; Sugg v. Baker,...