Capps v. Smith, 531
| Decision Date | 02 December 1964 |
| Docket Number | No. 531,531 |
| Citation | 139 S.E.2d 19,263 N.C. 120 |
| Parties | Gladys McLamb CAPPS, Administratrix of the Estate of Bobby L. Capps, Deceased, v. Alexander SMITH. |
| Court | North Carolina Supreme Court |
Bryan & Bryan, Dunn, for plaintiff.
Teague, Johnson & Patterson, Raleigh, for defendant.
Plaintiff, alleging that her intestate's death was caused by the joint and concurring negligence of defendant Smith and M. D. Capps, originally sued Smith and Capps' administrator. Although the allegations of Capps' negligence remain in the complaint, his administrator had been eliminated from the case when it reached us. The administrator of an unemancipated minor child killed by the negligence of his parent has no cause of action against the parent for the wrongful death of his intestate. Lewis v. Farm Bureau Mut. Auto. Insurance Co., 243 N.C. 55, 89 S.E.2d 788; Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835.
Plaintiff's specifications of negligence against Smith are that he failed to keep a proper lookout, drove at a speed in excess of fifty-five miles per hour, and failed to take approapriate action to avoid the collision which he should have anticipated when he saw, or should have seen, the Capps truck go off the highway. Although plaintiff alleges elsewhere in the complaint that the collision occurred in the center of the road, she does not specifically allege that defendant operated the Plymouth to his left of the center of the highway.
Plaintiff's estimates of speed, distance, and time are incompatible because they are mathematically impossible. If two vehicles are 100 feet apart and one of them is traveling forty-five miles per hour and the other sixty miles per hour, they must, of course, necessarily meet in less than three seconds--as a matter of fact, in approximately 0.65 second. Even if one of the vehicles were at a dead stop, the vehicle traveling sixty miles per hour would traverse the distance of 100 feet in approximately 1.14 seconds. Understandably, plaintiff's observations, made under stress and apprehension, are unlikely to have been accurate. All the evidence tends to show that when the Capps truck returned to the pavement, it came across the road directly in front of defendant's approaching automobile, and that the collision occurred on the paved portion of the highway. If, as we must, we accept plaintiff's estimate of speed and distance, defendant could not have averted an encounter with the truck. That he took no evasive action in the time at his disposal--especially when his view of the truck was obstructed by another car approaching in...
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