Casada v. Ford

• Decision Date: 03 June 1925
• Docket Number: (No. 559.)
• Citation: 128 S.E. 344,189 N.C. 744
• Parties: CASADA. v. FORD.
• Court: North Carolina Supreme Court

(189 N.C. 744)

128 S.E. 344

CASADA.

v.FORD.

(No. 559.)

Supreme Court of North Carolina.

June 3, 1925.

Appeal from Superior Court, Buncombe County; McElroy, Judge.

Action by W. J. Casada against D. P. Ford. Prom a judgment of nonsuit, plaintiff appeals. Reversed.

The plaintiff alleges, in part:

"That on or about the 28th day of July, 1923, while the plaintiff's wagon and team, composed of two horses, were standing on the side of the public highway in the village of Leicester, N. C, in said county, and in front of the store of one John Davis, the defendant, the said I). P. Ford, who was driving a heavy truck loaded with acid wood, came down said highway facing said team, driving in a negligent and unlawful manner and unlawfully and negligently, without any fault on the part of the plaintiff, drove said truck into the team of the plaintiff, thereby injuring and damaging one of the horses to such an extent that said horse was rendered absolutely worthless and it was necessary for him to be killed on said date."

The material allegations were denied by defendant. The defendant sets up contributory negligence as a defence and for a further answer alleges:

"That on or about the 28th day of July, 1923, the plaintiff negligently placed his team in the public thoroughfare leading through the town of Leicester, and on the wrong side of said thoroughfare, in close proximity to the center of said thoroughfare, without any proper driver or person to look after the said team, and without any caution on his part to take care of his said team, and while this defendant was passing over said highway, at a point where plaintiff's team was standing, which said team at said time showed no signs of being frightened or indication that it would shy at an approaching car or truck, and while this defendant was driving his truck at an exceedingly slow rate of speed, one of said horses, negligently left unattended by the plaintiff and standing in the said highway, for some unknown cause, without any notice to this defendant, whirled, twisted, or kicked his right leg and the same became caught or came in contact with defendant's loaded truck, and if the said horse was injured, it was no fault upon the part of this defendant, but was due to the reckless, wrongful, and negligent conduct of the plaintiff; that if the said horse was injured, the same was of very little, if any, value, as this defendant is advised and believes; that this defendant avers that if the plaintiff has been injured, the same was due to the wrongful and negligent conduct of the plaintiff, and due to the contributory negligence of the plaintiff, as herein set out."

Arvill King, witness for plaintiff, testified on direct examination:

"My name is Arvill King, and I am 16 years of age. I was at Leicester at the time Mr. Casada had his wagon there and Mr. Ford was there in his truck. I was holding Mr. Casada's wagon when the truck ran into the horse. Mr. Ford ran his truck within about a foot or 15 inches of Mr. Casada's wagon—that is, the truck wheels were in about a foot or 15 inches of the wagon wheels. I did not see the horse fall. I do not know the value of horses. The truck was running about 12 miles an hour down grade. It was loaded with acid wood and looked to have about two cords. The horse moved his head before the truck struck him, but he did not move his back part."

This testimony was weakened on cross-examination as to the position in which King was sitting, indicating that he could not see the collision. There was no evidence introduced by the defendant, and none that the injury was caused by the horse kicking. At the close of plaintiff's evidence, defendant moved for judgment as of nonsuit. The court entered judgment as of nonsuit as appears in the record. Plaintiff excepted and assigned the following error, and appealed to the Supreme court:

"(1) The ruling of the court in sustaining the motion of defendant for judgment as of nonsuit. (2) The judgment of the court nonsuiting the case as appears of...