Bryant v. Woodlief, 459

• Citation: 252 N.C. 488,114 S.E.2d 241
• Decision Date: 18 May 1960
• Docket Number: No. 459,459
• Court: North Carolina Supreme Court
• Parties: , 81 A.L.R.2d 939 Ada Reaves BRYANT, Executrix of the Estate of Alfred A. Bryant, Deceased, v. Edward Earl WOODLIEF and Roy Pearson Ray.

Page 241

114 S.E.2d 241

252 N.C. 488, 81 A.L.R.2d 939

Ada Reaves BRYANT, Executrix of the Estate of Alfred A.

Bryant, Deceased, v. Edward Earl WOODLIEF and Roy Pearson Ray.

No. 459

Supreme Court of North Carolina.

May 18, 1960

Manning & Fulton, Raleigh, for plaintiff.

Armistead J. Maupin, Raleigh, for defendant Ray.

Smith, Leach, Anderson & Dorsett, Raleigh, for defendant Woodlief.

DENNY, Justice.

Each defendant assigns as error the refusal of the court below to sustain his motion for judgment as of nonsuit.

The appellant Woodlief insists that if he was negligent his negligence was insulated by the negligence of the defendant Ray in turning his car in front of him, and he cites in support of his position Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; and Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808.

The test of whether the negligent conduct of one tort feasor is to be insulated as a matter of law by the independent act of another, is well settled by our decisions. In Harton v. Forest City Telephone Co., 141 N.C. 455, 54 S.E. 299, 302, the Court said: '* * * the test * * * is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected * * *. We think it the more correct rule that, except in cases so clear that there can be no two opinions among men of fair minds, the question should be left to the jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could reasonably have expected them to occur as a result of his own negligent act. * * * ' Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Rulane Gas Co. v. Montgomery ward & Co., 231 N.C. 270, 56 S.E.2d 689; Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E. 695.

In our opinion the cases relied on by the appellant Woodlief and cited above are not controlling on the factual situation revealed by this record.

The Hudson case involved a collision which occurred at an intersection governed by a traffic control signal, with the defendant Miller having a red light in his traffic lane until defendant Minton, who was driving the defendant Transit Company's truck, was 75 feet from the intersection approaching from the opposite direction at a speed of approximately 45 miles per hour, when traffic lights for both operators simultaneously turned green. Defendant Miller then made a left turn directly in front of Minton when the truck driven by Minton was so close that a collision was unavoidable. We upheld a nonsuit as to the Transit Company and its driver.

In Aldridge v. Hasty, supra, the defendant Burns turned to his left directly in front of the defendant Hasty when Hasty was 20-25 feet away. In the instant case, the defendant Woodlief testified that he was from 100 to 200 feet away from the McLean driveway when the defendant Ray cut across the highway in front of him. The physical facts seem to warrant the inference that he was more than 200 feet away when he saw the Ray car making a left turn, since he managed to apply his brakes and his car left tire and skid marks after the brakes were applied for 197 feet before reaching the point of impact.

In the Butner case, while traveling at night and at such time when he should have known his hand signal for a left turn could not be seen by the approaching car because his hand would be in the shadow of his own lights, defendant Spease turned to his left and directly in front of Butner's car at a time when the vehicles were only some forty feet apart.

In the consolidated cases of Henderson v. Powell and Rattley v. Powell, 221 N.C. 239, 19 S.E.2d 876, 878, at the time of the accident complained of, the plaintiffs Henderson and Sylvester Rattley, intestate of the plaintiff administratrix, were guest passengers in an automobile owned and operated by George McCrimmon. McCrimmon pulled into the path of a train approaching at a speed of approximately 60 miles per hour, with resultant injuries to plaintiff and injuries resulting in the death of Sylvester Rattley. In reversing a judgment as of nonsuit in the lower court, as to the defendant railroad, this Court said: 'The defendants insist that their negligence, if any there was, would not have produced the injury to the plaintiffs without the negligence of McCrimmon; and therefore it stands insulated, leaving McCrimmon's intervening negligence the sole proximate cause. The converse of this statement is universally accepted as true, and is thus expressed in a leading case: \When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed to a cause, unless without its operation the accident would not have happened.' Ring v. City of Cohoes, 77 N.Y. 83, 90, 33 Am. Rep. 574. It took the combined activities of the railroad company and McCrimmon to bring their respective vehicles into the collision inflicting the injury. The formula proposed by defendants would exonerate both of them with equal impartiality.'

There is ample evidence on this record to support the plaintiff's contention that the defendant Woodlief was operating his automobile at an excessive and unlawful rate of speed, to wit, 80 to 90 miles per hour as he approached the point of collision. In light of the evidence on the record before us, it cannot be said as a matter of law that the defendant Woodlief could not reasonably have foreseen that some accident or injury was likely to occur as the result of his excessive speed. Moore v. Town of Plymouth, supra.

With respect to the evidence against the defendant Ray, in our opinion, when the evidence against him is considered in the light most favorable to the plaintiff, it was sufficient to carry the case to the jury. It was within the province of the jury to determine whether or not the defendant Ray exercised reasonable care under the circumstances in turning his car into the path of an approaching car which he testified was in his opinion approaching him at a speed of 100 miles per hour; and the greatest distance between the Woodlief car and the Ray car at the time defendant Ray began his left turn, was fixed by the plaintiff's witness Kearney at 600 feet, and the shortest distance between the two vehicles when the defendant Ray began his left turn was 100 to 200 feet, testified to by the defendant Woodlief.

In our opinion, the court below properly overruled the respective motions for judgment as of nonsuit, and we so hold.

The most serious question raised by both defendants and assigned by both as error was the admission of evidence in the trial below to the effect that plaintiff's testate was a retired railroad employee and was drawing the sum of $140.28 per month from the Railroad Retirement Board at the time of his death. Both defendants insist that such evidence was inadmissible and that the court below committed error in allowing the jury to consider such evidence in determining the pecuniary loss sustained by the plaintiff as the result of her testate's wrongful death.

G.S. § 28-174 provides: 'Damages recoverable for death by wrongful act.--The plaintiff in such action may recover such damages as are a fair and just compensation for the pecuniary injury resulting from such death.'

The defendants insist and seriously contend that the pecuniary value of the life of plaintiff's testate is limited to the net income which the deceased might reasonably have been expected to earn from his own labors had his life not been cut short by his untimely death. Caudle v. Southern Ry. Co., 242 N.C. 466, 88 S.E.2d 138; Lamm v. Lorbacher, 235 N.C. 728, 71 S.E. 2d 49; Journigan v. Little River Ice Co., 233 N.C. 180, 63 S.E.2d 183; Queen City Coach Co. v. Lee, 218 N.C. 320, 11 S.E.2d 341; Carpenter v. Asheville Power & Light Co., 191 N.C. 130, 131 S.E. 400; Purnell v. Rockingham R. Co., 190 N.C. 573, 130 S.E. 313; Poe v. Raleigh & A. Air Line R. Co., 141 N.C. 525, 54 S.E. 406; Russell v. Windsor Steamboat Co., 126 N.C. 961, 36 S.E. 191.

Ordinarily, in an action for wrongful death the plaintiff's evidence presents no facts that would warrant any formula or method for ascertaining the fair and reasonable compensation for the pecuniary injury resulting from wrongful death, other than that laid down in the above cases. Even so, we do not understand that the general rule in this respect would exclude the inclusion of income from an annuity, life estate, retirement pay or other income for life only, in arriving at the pecuniary loss sustained by reason of wrongful death.

In Poe v. Raleigh & A. Air Line R. Co., supra, it is said [141 N.C. 525, 54 S.E. 407]: 'This court has not prescribed any \hard and fast rule' by which to bind the jury in making the estimate of what sum should be given or to require them to make the assessment of damages in any particular way.'

In the case of Mendenhall v. North Carolina R. Co., 123 N.C. 275, 31 S.E. 480, a proper charge in such case was given and its form was commended as a safe one for guidance in the opinion of Poe v. Raleigh & A. Air Line R. Co., supra, and is as follows: 'The measure of damages is the present value of the net pecuniary worth of the deceased to be ascertained by deducting the cost of his own living and expenditures from the gross income, based upon his life expectancy. As a basis on which to enable the jury to make their estimate, it is competent to show, and for them to consider, the age of the deceased, his prospects in life, his habits, his character, his industry and skill, the means he had for making money, the business in which he was employed; the end of it all being to enable the jury to fix upon the net income which might be reasonably...