Appeal
from Superior Court, Forsyth County; McElroy, Judge.
Action
by William A. Burke, administrator of the estate of William
A. Burke, Jr., against the Carolina Coach Company and
another. From a judgment of nonsuit, plaintiff appeals.
Affirmed.
Although
breach of statute is negligence per se, there must be causal
connection between breach and injury to warrant recovery.
The
plaintiff is the duly appointed administrator of W. A. Burke
Jr., a boy 14 years of age, who was killed on July 16, 1928
as the result of a collision between a bus owned and operated
by defendant Carolina Coach Company, and an automobile driven
by Mrs. A. B. Pritchard. Plaintiff's intestate was a
guest in said automobile, sitting on the back seat at the
time of the collision.
Plaintiff
alleged that the car driven by Mrs. Pritchard was traveling
along highway No. 10 toward Winston-Salem, and had reached a
point between Mebane and Graham, approaching a car owned by
the defendant L. B. Capeheart, which was also headed west and
parked on the highway. Plaintiff further alleged that the
defendant Capeheart had parked his car in violation of the
law, and that "said Mrs. A. B. Pritchard, necessarily in
proceeding along the highway, had to attempt to pass to the
left of defendant's (Dr. L. B. Capeheart's)
automobile; that while she was attempting to do so, in the
exercise of due care, the motor bus of the defendant
Carolina Coach Company, being operated at an unlawful and
excessive rate of speed, as above set forth, collided with
the automobile in which plaintiff's intestate was riding
that as a result of said collision plaintiff's intestate
received injuries, from which he died in less than two hours
thereafter." The bus was proceeding from Greensboro
toward Durham, and therefore in an opposite direction from
that in which the car driven by Mrs. Pritchard was traveling.
Plaintiff
further alleged that the death of his intestate was
proximately caused by the negligence of defendant Capeheart
"in unlawfully parking his automobile in the public
highway," and also as a result "of negligence of
defendant, Carolina Coach Company, in operating its motor bus
at an unlawful rate of speed and in failing to keep a proper
lookout."
The
defendants offered no evidence.
The
only negligence alleged against the defendant Capeheart was
that he had unlawfully parked his car upon the highway.
A
witness for plaintiff testified with respect to the Capeheart
car as follows: "When I heard the collision I went to
the window and looked out, and then hurried up there. When I
looked out the window I just saw there was a a wreck, and I
hurried up there. I saw a car stopped on the highway before
the wreck. As well as I remember it was something between an
orange and a yellow car. As well as I remember, the driver of
that car had his left arm out of the window, doing something
to his windshield. That car was stationary, about half way on
and half way off the hard surface of the road. There is room
enough there for a car to park off the hard surface road on
both sides of the hard surface. I didn't pay much
attention to the car that I had seen parked there when I got
out to the wreck, but it was to the right, facing my house,
on its right, across the hard surface from the bus, about
even with the bus, slightly back of it, headed toward
Burlington, or Winston-Salem. *** When I got to the scene of
the wreck the bus and the car (in which plaintiff intestate
was riding) were together on the bus' right side of the
road. Only the left hand back wheel of the bus was on the
hard surface. *** The road is straight in each direction from
the point of the collision for about three quarters of a
mile. *** The dark portion of the hard surface road there is
about sixteen feet wide. *** The paved portion of the
highway, including the border, is about eighteen feet wide.
*** The right hand front wheel of the bus was slightly off
the shoulder, toward the ditch. The bus had started down the
slope. *** If the grade had been steep enough it would have
turned over if it had gone any further down. *** When I got
there the bus was entirely off the black portion of the
highway and the front wheels were entirely off the light
concrete border. *** When I got there the cars were hooked
up, the left front corner of the bus was about the center and
nearer to the rear of the Essex. The Essex showed that the
impact was made just about in the center of the Essex car
with the front corner of the bus on the left hand side.
Everything that I saw was on the extreme right side of the
highway going toward Mebane and as near the ditch as a car
could be driven. *** The orange or yellow car
(Capeheart's car) *** was about opposite or a little past
the center of the bus when I got up there. *** At least half
of it was on the dirt road. *** The marks of the bus tire
were on the hard surface, the asphalt, out in the road, for
about the length of the bus, straight from the back tire. I
couldn't say whether the bus ran more than its length
after the application of the brakes. If there was more than
one line of marks I didn't see them. *** The line I saw
was leading from the back wheel of the bus out toward the
center of the road. It did lead more than three feet from the
edge of the cement toward the center. It led to about where
the bus wheel ought to have been if it had been on the hard
surface, if it was traveling along in the usual and ordinary
way."
Another
witness for plaintiff, who was traveling in the same
direction with the bus; that is, east toward Durham,
testified that it was raining, and that she had stopped her
car to put up the windows in order to keep out the rain.
While parked for this purpose, a bus passed her. She
testified: "My car was parked about 300 yards from the
scene of the collision. I have an opinion as to how fast the
bus was going when it passed me. In my opinion it was going
between 45 and 50 miles an hour. It was going up grade at
that time. After the bus passed me I heard the impact and
collision and I started toward the collision. *** The road is
practically straight at the scene of the wreck. My car was
parked in a kind of a dip. *** I couldn't see the
collision from where I had parked my car because of the
incline just in front of my car. I had to go over that
incline before I could see. *** From where I had stopped my
car up to the straight-away there is right much grade. *** I
was down in the dip. There is considerable grade going up
from where my car was parked going east. After you get to the
top of the incline the road is straight for something like a
mile. I don't know how fast it (bus) was going, but I
think it was going 45 or 50 miles an hour."
Another
witness for plaintiff testified: "The bus hit...
