Cunningham v. Haynes
| Decision Date | 23 November 1938 |
| Docket Number | 460. |
| Citation | 199 S.E. 627,214 N.C. 456 |
| Parties | CUNNINGHAM v. HAYNES et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Hubert E. Olive, Judge.
Action for injuries received in automobile collision by Francis C Cunningham, by next friend, R. D. Cunningham, against C. L Haynes and wife, Mrs. C. L. Haynes, and others. From a judgment overruling their demurrer to the complaint, the named defendants appeal.
Affirmed.
Where an injury is proximately caused by the negligence of two persons, to whatever degree each may have contributed to the result, the negligence of the one may not exonerate the other, each being a "joint tort-feasor," and the injured person may maintain his action for damages against either or both.
The plaintiff instituted his action to recover damages for a personal injury alleged to have been caused him by the joint and concurring negligence of the defendants, growing out of a collision between an automobile operated by defendants Haynes and an automobile operated by defendants Hawes. Plaintiff was a passenger in the Haynes automobile. Defendants Haynes demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action as to them for the reason that the allegations of the complaint established that the sole proximate cause of the injury was the negligence of defendants Hawes.
From judgment overruling the demurrer, defendants Haynes appealed.
A. J Fletcher, of Raleigh, for appellant.
R. Roy Carter, of Raleigh, for appellee.
The question presented by this appeal is whether the complaint sufficiently alleges a cause of action for joint and concurring negligence on the part of the defendants. This requires an examination of the allegations of the complaint with particular reference to the matters challenged by the demurring defendants.
The material facts alleged, upon which the action is based, may be briefly stated as follows:
On Saturday August 7, 1937, the plaintiff was a passenger in an automobile which belonged to and was used by defendants Haynes for the convenience and pleasure of the family and which was being driven at the time by the minor son of these defendants, for that purpose, on a trip to the ocean beaches near Wilmington. About six-thirty in the afternoon of that date, while en route southwardly on highway 60, and at a time when it was raining and the pavement wet, and when the highway was congested with Saturday afternoon beach-bound traffic, young Haynes drove the automobile at a fast and reckless rate of speed considering the nature, condition and use of the highway, and at a speed of fifty miles per hour, and at a place where he was approaching the intersection of highway 60 with highway 53. Without slackening his speed he entered into and upon this intersection of principal highways at a speed greater than was reasonable and proper under the circumstances, and, as he was undertaking to traverse the intersection, the defendants Hawes, who were driving their automobile northwardly along highway 60, undertook to make a left turn into highway 53 when the Haynes automobile was in close proximity. The defendants Hawes turned their automobile into the path of the oncoming Haynes automobile without a signal or warning and on a wet pavement. It is alleged that by reason of the excessive speed of the Haynes automobile, under these circumstances, the driver thereof was unable to turn aside or stop his automobile, and, without slowing down or turning aside, proceeded straight ahead and collided with the Hawes automobile, proximately resulting in injury to the plaintiff.
It is further alleged in the complaint that the drivers of both automobiles negligently operated their respective automobiles upon a much used highway and into a principal and congested intersection without keeping a proper lookout, without applying brakes or slowing down, without having their respective automobiles under control, and that both operated their automobiles without due caution...
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