Cheek v. Barnwell Warehouse & Brokerage Co.

• Decision Date: 26 February 1936
• Docket Number: 672.
• Citation: 183 S.E. 729,209 N.C. 569
• Parties: CHEEK v. BARNWELL WAREHOUSE & BROKERAGE CO. et al.
• Court: North Carolina Supreme Court

183 S.E. 729

209 N.C. 569

CHEEK v. BARNWELL WAREHOUSE & BROKERAGE CO. et al.

No. 672.

Supreme Court of North Carolina

February 26, 1936

Appeal from Superior Court, Guilford County; Pless, Judge.

Action by Mrs. Maude J. Cheek, administratrix of the estate of W. E Cheek, deceased, against the Barnwell Warehouse & Brokerage Company and another. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

A. C Davis and Frazier & Frazier, all of Greensboro, for appellant.

Cooper & Curlee, of Burlington, and Brooks, McLendon & Holderness of Greensboro, for appellees.

SCHENCK Justice.

This is an action for wrongful death of plaintiff's intestate resulting from a collision between a motortruck owned by the corporate defendant and driven by the individual defendant and a Chevrolet automobile driven by the intestate.

It is admitted that the collision took place on December 10, 1934 on highway No. 10 between Greensboro and Raleigh, while the truck was being driven east and the Chevrolet was being driven west, that the defendant Sharpe was driving the car of the Barnwell Warehouse & Brokerage Company in the scope of his employment as a chauffeur for the company, and that as a result of the collision the intestate was killed. All allegations of negligence contained in the complaint are abandoned in the appellant's brief except those to the effect that the defendants' truck was being driven on the left half of the highway in violation of Code 1935, § 2621 (51) and similar statutes, and that the driver of said truck failed to maintain a careful and proper lookout.

So far as the record discloses, there were no eyewitnesses to the collision between the two cars other than the intestate, who is now dead, and the driver of the truck, who did not testify. The plaintiff rests her case upon the testimony of witnesses who reached the scene of the collision some time after it occurred, and from the testimony of these witnesses all that can be gleaned is that the two cars collided and that the intestate was killed as a result of the collision. There is no evidence to establish on which side of the center line of the road the collision took place, or to establish the failure by the defendant to keep a proper lookout.

The plaintiff offered the testimony of the witness Bayne to the effect that the collision took place on the intestate's side of the center line of the road, that is, the north side to which the...