Bethune v. Bridges

• Court: North Carolina Supreme Court
• Citation: Bethune v. Bridges, 228 N.C. 623, 46 S.E.2d 711 (N.C. 1948)
• Decision Date: 17 March 1948
• Docket Number: 239
• Parties: BETHUNE v. BRIDGES.

46 S.E.2d 711

228 N.C. 623

BETHUNE v. BRIDGES.

No. 239

Supreme Court of North Carolina

March 17, 1948

Civil action to recover damages to plaintiff's automobile alleged to have been caused by the neglect, wrongful act or default of the defendant.

Plaintiff says that on the night of 8 or 9 September, 1944, between 9:00 and 9:30 P.M. he was traveling in his automobile on Highway No. 1, approaching Sanford from the north, when two of defendant's horses came out of the side road going towards the defendant's dairy barn, 'and one ran right into the side of my car. Its head caught just in front of the windshield and its knees went into the side of my car about even with the hinge of the front door '. It cost the plaintiff $77.00 to have his car repaired.

Plaintiff called the defendant, who said he had been away, and upon his return home about sundown, found that two of his horses were out; that he hunted them for half an hour but was unable to find them. Whereupon he came home and went to bed. The defendant's wife and daughters and others joined in the search, but gave it up when plaintiff did. The weather was inclement, with a light drizzling rain.

The court instructed the jury there was no evidence of negligence on the part of the defendant in allowing the horses to escape. 'The only question for you to determine is whether you are satisfied from the evidence and by its greater weight that there was any negligence proximately causing injury to plaintiff's car on his part in giving up the search and going to bed and going to sleep without continuing the search by or through himself or one or more of his employees. ' Exception.

From verdict and judgment for plaintiff, the jury assessing the damages at $50.00, the defendant appeals, relying chiefly upon the court's refusal to dismiss the action as in case of nonsuit.

S Ray Byerly, of Sanford, for plaintiff, appellee.

W W. Seymour, of Sanford, for defendant, appellant.

STACY Chief Justice.

The question for decision is whether the evidence suffices to carry the case to the jury in the face of a demurrer. The trial court answered in the affirmative. We are inclined to a different view.

It is conceded there was no negligence on the part of the defendant in failing to keep the horses in restraint, i. e., the horses escaped from the barn or lot through no foreseeable neglect on the part of the defendant. Gardner v. Black, 217 N.C. 573, 9 S.E.2d...