Brannon v. Sprinkle
|21 November 1934
|177 S.E. 114,207 N.C. 398
|BRANNON v. SPRINKLE et al.
|North Carolina Supreme Court
Appeal from Superior Court, Forsyth County; Hill, Special Judge.
Two actions by Hannah Brannon, administratrix of the estates of Edward and Tommy Brannon, deceased, against J. H. Sprinkle and others. From a judgment in favor of plaintiff, defendants appeal.
Only evidence favorable to plaintiff is considered on motion for nonsuit.
There were consolidated for the purpose of trial two cases; the plaintiff in each being the same person and the mother and the administratrix of her infant child, the intestate in the respective cases being Edward Brannon, aged four years, and Tommy Brannon, aged seven years, and the defendants in each case being the same.
Upon the plaintiff resting her case, the defendants moved the court to dismiss the action and for a judgment as of nonsuit and upon denial thereof noted objection and reserved exception, and upon the close of all the evidence the defendants renewed their motion theretofore made, which was again denied, and objection and exception again noted and reserved.
It is admitted that the plaintiff is the duly qualified administratrix of her deceased children, Edward and Tommy Brannon, and that the defendants at the time alleged, as well as before and after, were the owners of the land described in the complaint, located on Northwest boulevard, in a populous section of the city of Winston-Salem. It is also not controverted that the intestates were drowned in a well or reservoir on said land on the 30th day of May, 1933.
These actions are instituted for the alleged wrongful death of said infant children, the intestates.
From judgment in favor of the plaintiff, the defendants appealed assigning errors.
W. Reade Johnson, of Winston-Salem, for appellants.
J. O. Wagoner, R. M. Weaver, and Richmond Rucker, all of Winston-Salem, for appellee.
The determinative question in this case, which is raised by the exception to the denial of the motion for a judgment as of nonsuit, is whether there was sufficient evidence of actionable negligence as alleged in the complaint to be submitted to the jury.
The plaintiff alleges, inter alia,
The foregoing excerpts are from the complaint wherein Edward Brannon is the intestate, and the complaint wherein Tommy Brannon is the intestate is identical, except it is alleged that he was seven years of age.
These allegations, with the admitted facts, clearly state a cause of action, and, if they are supported by any evidence, the court correctly submitted the case to the jury.
John Moore, a ten year old boy, told a tragic story, with childlike simplicity, in these words:
Hannah Brannon, the mother, testified that she ran to the scene and jumped in the hole in which she was told her children had fallen; that the water was deeper than she was, because she went under and could not find bottom, and that she was unable to get out until somebody pulled her out; that she could not do anything to help her children; that Edward was four years old and Tommy was seven.
J. L. Snyder testified, in effect, that he was a member of the fire department of Winston-Salem, and that his company reached the scene about thirty minutes after the children were drowned, and that the firemen devised means to get the children out by laying two ladders across the well; that the water in the hole was about two and a half feet from the top of the wall, and the wall was about two and a half feet high, so the water came up about to the top of the ground; that on the south side the wall was about even with the ground, and the slope of the ground tapered the wall up, the ground being a little sloping and the wall level; that the wall around the hole was about two and a half or three feet above the ground on the north side, eighteen feet square, and made of brick. It was ninety-four feet from the center of the sidewalk on Northwest boulevard, on the south side of the property, to the center of the hole.
Peter Hogan testified substantially: That he had known this property thirty-five years or longer. That when he first became acquainted with it the city had it in charge and used it for a pumphouse, and later on the city sold it. That this well was used once as a help for the reservoir the city had on the far side of the creek, and that water was pumped from it through a pipe to the reservoir over there and then to the larger reservoir up town. That there was a path that came down the bank and went by on the west side of this brick structure, within some four or five feet of it. That the path led on out across the branch and on up across the hill, and that grown people and children all came across the property on this path; that there were two paths, one lead to "Pittsburg" and the other lead to the Old Town road and then into Cherry street. That he lived at the top of the hill on Cherry street and could see this property from his house. That there are other houses there and a school a good piece up Cherry street. That children going to school came through this lot where the hole is. There is a church on Cherry street, and people going to church came across that lot. That he had seen children playing ball and one thing and another down in that bottom, seen them down there often. They had a little flat on yon side of the well, between there and the branch, had a nice little place there where they would play ball; and then they played some time down below there further in the meadow place.
Celia Harrington's testimony in chief, as set forth in the record, is as follows: ...
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