Cox v. Hennis Freight Lines, No. 240

Docket NºNo. 240
Citation72 S.E.2d 25, 236 N.C. 72
Case DateAugust 22, 1952
CourtUnited States State Supreme Court of North Carolina

Page 25

72 S.E.2d 25
236 N.C. 72
COX,
v.
HENNIS FREIGHT LINES, Inc.
MATTHEWS
v.
HENNIS FREIGHT LINES, Inc.
No. 240
Supreme Court of North Carolina.
Aug. 22, 1952

J. T. Reece, Yadkinville, Wm. M. Allen, and Hoke F. Henderson, Elkin, for plaintiffs, appellees.

Folger & Folger, Mount Airy, for defendant, appellant.

ERVIN, Justice.

The court can not submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the [236 N.C. 77] evidence. Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843; Ewing v. Kates, 196 N.C. 354, 145 S.E. 673; Pittman v. Tobacco Growers' Association, 187 N.C. 340, 121 S.E. 634; Frick Co. v. Boles, 168 N.C. 654, 84 S.E. 1017; Wilson v. Altantic Coast Line Railroad Co., 142 N.C. 333, 55 S.E. 257. In ascertaining whether a pleading upholds a theory, the court construes the allegations of the pleading with liberality in favor of the pleader with a view to presenting the case on its real merits. G.S. § 1-151; Lyon v. Atlantic Coast Line R. Co., 165 N.C. 143, 81 S.E. 1. In determining the sufficiency of evidence to sustain the theory of the complaint and to withstand the motion of the defendant for a compulsory nonsuit, the court interprets the evidence in the light most favorable to the plaintiff. Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488. In performing this task, the court bears in mind that the credibility of witnesses and the weight to be given to their testimony are matters within the province of the jury, and that the jury may accept as true a part of the testimony offered by a party and reject as false the remainder of such testimony. Graham v. North Carolina Butane Gas Co., supra; Casada v. Ford, 189 N.C. 744, 128 S.E. 344; Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017; Maynard v. Sears, 157 N.C. 1, 72 S.E. 609; Newby v.

Page 29

Edwards, 153 N.C. 110, 68 S.E. 1062; State v. Smallwood, 75 N.C. 104.

When the pleadings and the evidence in the cases now before us are tested by these rules, it is manifest that they support two theories of recovery. These theories are somewhat alternative in character, and are summarized in the numbered paragraphs set forth below:

1. The driver of the defendant's tractor-trailer combination was guilty of negligence in that he failed to stop in obedience to a red traffic light as commanded by the ordinance, and his negligence in this respect proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews.

2. Marvin Matthews drove the Chevrolet automobile into the intersection first and undertook to proceed straight through it ahead of the tractor-trailer combinatin, whose driver could observe the prior entry and occupancy of the intersection by the Chevrolet car. Notwithstanding this, the driver of the tractor-trailer combination immediately proceeded onto the intersection without permitting the Chevrolet automobile to clear the intersection or its pathway thereon. In so doing, the driver of the tractor-trailer combination was negligent in that he failed to maintain a proper lookout, or in that he failed to keep his vehicle under reasonable control, or in that he drove his vehicle at a speed greater than was reasonable and prudent under the conditions then existing. The negligence of the driver of the tractor-trailer combination in one or more of [236 N.C. 78] these respects, either of itself or in conjunction with concurrent negligence on the part of Marvin Matthews, proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews, irrespective of the color of the traffic light confronting the driver of the tractor-trailer combination at the time of his entry into the intersection.

These theories rest upon substantial legal foundations. The legislature has decreed in express terms that 'local authorities shall have power to provide by ordinances for the regulation of traffic by means of * * * signaling devices on any portion of the highway where traffic is heavy or continuous '. G.S. § 20-169. In consequence, the Town of Mount Airy acted within the limits of its authority as a municipal corporation in enacting its ordinance and in installing its automatic traffic control signals. Since the ordinance is designed to guard the safety of persons using the public streets of the municipality, a motorist is negligent as a matter of law if he fails to stop in obedience to a red traffic light as required by the ordinance, and his negligence in that particular is actionable if it proximately causes the death or injury of another. Boles v. Hegler, 232 N.C. 327, 59 S.E.2d 796; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Dillon v. City of Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311; King v. Pope, 202 N.C. 554, 163 S.E. 447; Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876; Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629. The mere fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control, and to drive his vehicle at a speed which is reasonable and prudent under existing conditions, or exonerate him from legal liability for the death or injury of another proximately resulting from his failure to perform his legal duty in one or more of these respects. Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361; Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539; Rose v. Campitello, 114 Conn. 637, 159 A. 887; Davis v. Dondanville, 107 Ind.App. 665, 26 N.E.2d 568; Landess v. Mahler, 295 Ill.App. 498, 15 N.E.2d 13; Capillon v. Lengsfield, La. App., 171 So. 194; McCormick & Co. v. Cauley, La.App., 168 So. 783; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768; Shea v. Judson, 283 N.Y. 393, 28 N.E.2d 885; Schmidt v. City Ice & Fuel Co., 60

Page 30

Ohio.App. 29, 19 N.E.2d 514; Radobersky v. Imperial Volunteer Fire Dept.,368 Pa. 235, 81 A.2d 865; Wilson v. Koch, 241 Wis. 594, 6 N.W.2d 659.

These things being true, the court rightly refused to nonsuit the actions. In reaching this conclusion, we do not overlook the circumstance that the first theory of recovery presented by plaintiffs is defectively stated in [236 N.C. 79] their pleadings. The complaints do not allege, as they ought, that the automatic traffic control signals at the...

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51 practice notes
  • Wagoner v. North Carolina R. Co., No. 738
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 23 Septiembre 1953
    ...to the plaintiff, and gives to him the benefit of every inference which the testimony fairly supports. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d The plaintiff appellee in her brief states 'our ca......
  • Lea v. Carolina Power & Light Co., No. 668
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 22 Mayo 1957
    ...A power company is not required to anticipate negligence on the part of others. Alford v. Washington, supra; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Wood v. Carolina Tel. & Telephone Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L. R.2d 1; Montgomery v. Blades, 222 N.C. 463, 23 S.E......
  • Bass v. Alvarado, NO. COA10-421
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Mayo 2011
    ...a red traffic light..." Troxler v. Central Motors Lines, Inc., 240 N.C. 420, 425, 82 S.E.2d 342, 346 (1954) (quoting Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25). In Troxler, our Supreme Court considered whether a trial court was correct in overruling a defendant's demurrer to the plain......
  • Calloway v. Wyatt, No. 389
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 1 Mayo 1957
    ...to the jury on a particular theory unless such theory is supported by both the preadings and the evidence. ' Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25, 28. This Court said in McKee v. Lineberger, 69 N.C. 217, 239: 'Proof without allegation is as [246 N.C. 133] ineffective as al......
  • Request a trial to view additional results
51 cases
  • Wagoner v. North Carolina R. Co., No. 738
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 23 Septiembre 1953
    ...to the plaintiff, and gives to him the benefit of every inference which the testimony fairly supports. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d The plaintiff appellee in her brief states 'our ca......
  • Lea v. Carolina Power & Light Co., No. 668
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 22 Mayo 1957
    ...A power company is not required to anticipate negligence on the part of others. Alford v. Washington, supra; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E. 2d 25; Wood v. Carolina Tel. & Telephone Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L. R.2d 1; Montgomery v. Blades, 222 N.C. 463, 23 S.E......
  • Bass v. Alvarado, NO. COA10-421
    • United States
    • North Carolina Court of Appeal of North Carolina (US)
    • 17 Mayo 2011
    ...a red traffic light..." Troxler v. Central Motors Lines, Inc., 240 N.C. 420, 425, 82 S.E.2d 342, 346 (1954) (quoting Cox v. Freight Lines, 236 N.C. 72, 72 S.E.2d 25). In Troxler, our Supreme Court considered whether a trial court was correct in overruling a defendant's demurrer to the plain......
  • Calloway v. Wyatt, No. 389
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • 1 Mayo 1957
    ...to the jury on a particular theory unless such theory is supported by both the preadings and the evidence. ' Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25, 28. This Court said in McKee v. Lineberger, 69 N.C. 217, 239: 'Proof without allegation is as [246 N.C. 133] ineffective as al......
  • Request a trial to view additional results

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