Boone v. Matheny
| Citation | 29 S.E.2d 687,224 N.C. 250 |
| Decision Date | 19 April 1944 |
| Docket Number | 454. |
| Parties | BOONE v. MATHENY. |
| Court | United States State Supreme Court of North Carolina |
Bailey, Holding, Lassiter & Wyatt and Douglass & Douglass, all of Raleigh, for plaintiff appellee.
Smith Leach & Anderson, of Raleigh, for defendant appellant.
The plaintiff sued to recover damages for injuries sustained in the overturning of defendant's wrecking car in which he was a passenger while the car was being driven by defendant's employee. The injuries were alleged to have been caused by the negligence of the driver. Upon the trial defendant suffered an adverse verdict upon the issues and appealed from the judgment entered thereupon. Pertinent evidence on the points considered is summarized in this opinion.
The appeal, inter alia, presented for error the refusal of the trial judge to render judgment as of nonsuit, upon a demurrer to the evidence. G.S. § 1-183. Counsel rests the validity of the motion to nonsuit upon (a) a want of evidence showing authority of the driver of the truck, or wrecker, of the defendant to carry plaintiff as a passenger thereon; and (b) the lack of evidence to show that the driver was negligent in the operation of the vehicle which left the highway, ran down an embankment, and overturned, with consequent injury to plaintiff.
1. The evidence discloses that plaintiff, leaving his car about 10 miles from Wake Forest with a flat tire and a damaged wheel caught a ride into town, and went to defendant's garage and told the foreman about the need of repairs to his car. Thereupon, the foreman instructed a colored man, an employee of defendant, to take a wrecker and go out and make the needed repairs to plaintiff's car. After getting out the wrecker and servicing it with gas, the colored man, in the presence of the foreman, asked plaintiff if he was ready to go, and plaintiff told him he was. He got into the car, or wrecker, and went with the driver to the place where his car had been parked. Upon inspection of the car the colored man said it would have to be towed to the garage, as he was unable to make the repairs there. The car was hoisted behind the wrecker, taken in tow, and the driver told plaintiff he would have to ride with him in the wrecker, which plaintiff did, down to the point where the vehicle left the highway and was overturned.
Without elaboration, which we think unnecessary, we conclude from these facts and circumstances that the jury might infer, as it did, that the plaintiff became a passenger in the wrecker, and continued as such to the place of his injury, under authority derived from defendant.
2. The evidence as to the occurrence out of which the plaintiff sustained his injury is substantially this: The weather was fair, and the wrecker was being driven along a paved highway, with shoulders on each side. The highway wad dry. It was about 7:30 in the morning. The wrecker was running 35 or 40 miles an hour. There was no obstruction of any sort on the highway. The plaintiff testified: 'We were on our way back to Wake Forest and had gone about two miles when the negro suddenly lost control of the wrecker, and it ran off the road on the right hand side down a fill and turned over.' The driver stated that the sun had got into his eyes and that he couldn't see how to drive. To this latter testimony there was objection and exception, but the evidence was introduced in practically the same form later without exception. The witness repeated that it was a fair day and that the sun had just come up at the time.
In support of the contention that there is an utter lack of evidence affording an inference of negligence on the part of defendant, counsel observes that such evidence could only be made to appear by resort to the doctrine of res ipsa loquitur, and that the doctrine is inapplicable here because, when an attempt is made to apply it, the facts do not speak unequivocally of defendant's negligence. Citing Tortora v. State, 269 N.Y. 167, 199 N.E. 44, appellant suggests that there is no definitely assignable reason why defendant's wrecker left the road--that it was just as probable that it occurred from a failure of the steering grear as want of prudent operation; and that the balance of probabilities does not afford such a margin in favor of the theory of negligence as to justify that inference. Counsel supports this view by citations and quotations from Galbraith v. Busch, 267 N.Y. 230, 196 N.E. 36, in which the same principle is asserted--namely, that the swerving of the car otherwise unexplained, is as likely to have occurred from a break in the mechanism as from negligent operation; and the opinion adds that since there is no evidence of knowledge on the part of the defendant of any defect in...
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