Appeal
from Superior Court, Mecklenburg County; MacRae, Special
Judge.
Action
by Caroline Dempster against John Fite. From the judgment for
plaintiff, defendant appeals.
No
error.
In
action for injuries occurring at night when defendant
motorist struck rear of automobile in which plaintiff was
riding, negligence held for jury.
This
was an action for actionable negligence, brought by plaintiff
against defendant alleging damage. Plaintiff was a telephone
operator in the employ of the Southern Bell Telephone & Telegraph Company, and worked until 9 o'clock the night
of her injury-- July 25, 1931. After working hours, she and a
lady friend went to Gastonia, N. C., with two young men, over
the Wilkinson boulevard. On the return trip she was riding in
the rear seat of the automobile. Plaintiff testified, in
part: "Our car was struck in the rear and was torn
completely up. It knocked it a long distance down the
highway. The car that hit us, when I got out, was jammed into
the back of our car. They were locked together. We were
struck right in the middle of the back seat. I was knocked
against the front seat almost unconscious. Inez McLendon
helped me out of the car. *** I went to bed. I went to the
hospital a week afterwards. Dr. Alonzo Myers put me there. I
stayed in the hospital two weeks. He put me in a plaster cast
the first day I went to see him. I have the cast on now. I
have been wearing the cast for nine months. After I left the
hospital I went to my apartment on East Fifth Street and
stayed there about two months or a little over. I was unable
to be up and have not worked since. I tried to do a little
house work, but when I do I get completely worn out. I have
to go to bed and rest. I was in bed two months at home and
two weeks in the hospital and after that I stayed in bed the
best part of the day. *** My back pains me a lot. I was not
hurt in any other part of the body but I am nervous. I was
terribly bruised on the night of the accident. My arms were
black and blue all over. The seat I was in was pushed up to
the front and the front seat broken out. I am twenty-two
years old. *** The accident happened a little after twelve.
*** We did not stop any place--from the time we left home
until the accident happened except to change drivers. We were
running about twenty-five or thirty miles an hour when we
were struck. It must have knocked us about fifty yards. His
car was hooked up with ours. I spoke to Mr. Fite when I got
out and then I collapsed after he said he was going to do all
the damage he could. He deliberately backed his car back and
came forward and hit our car again. I fainted but in a few
minutes I came to. They pushed Mr. Fite's car back from
our car to clear the road. Mr. Fite said 'I am going to
complete this thing.' *** I live with my parents in
Spartanburg, the first I told them of this accident was when
I was taken to the hospital. My mother came but my father is
an invalid."
On
cross-examination the plaintiff testified that she had filed
a complaint for injury by collision, which occurred July 4
1930, whereby her pelvic bones had been broken in three
places, that she had been placed in and remained in a plaster
cast for a period of four months. Plaintiff, after
defendant's evidence was introduced, was recalled and
testified: "I remember the date of my first injury when
the pelvic bones were cracked--July 4th, 1930. I went to work
after that injury about November 15th. I worked steadily
after that until the night of this accident."
The car
plaintiff was riding in, when hit from the rear, was on the
right-hand side, in compliance with the law of the road with
no obstruction to prevent any one in the rear from seeing the
car plaintiff was riding in. It was a straight road, and was
a clear night. It was a hard lick, the car plaintiff was in
was knocked 50 to 60 feet. Defendant denied negligence, and
contended that the rear light of the car in which plaintiff
was riding was not burning.
Dennis
Deal, witness for plaintiff, testified in part: "The
center of his (Fite's) radiator hit the spare tire on my
car, it was a steel wheel on the back of my car. His car was
jammed in the back of my car. *** Mr. Fite got in his car to
drive it out of the road and ran into the back end of us
again. Our car was torn up as much as possibly could be done
to it. The rear seat was broken in two. The rear seat was
knocked part of the way towards the front of the car. The
front seats were broken off too. Mr. Fite's car hit my
spare wheel and tore it up. *** Mr. Fite told me everything
would be all right --that he would fix everything up and not
let the Sheriff lock him up."
L. N
Warren, witness for plaintiff, testified in part, speaking of
defendant: "I could not say who passed me before I got
to where the wreck was but he was driving a yellow Ford
Cabriolet. The next time I saw it, it was in back of Mr
Deal's car. I will say it must have been doing sixty or
sixty-five miles an hour. *** The road was straight there. I
found Mr. Fite's car in the rear end of Mr. Deal's
car, it was fastened to the car. They were both in bad
condition. The seats of Deal's car on the inside looked
like dynamite had turned loose inside. The front seat was
broken off. *** Miss Dempster said she would rather come on
to Charlotte and have her own doctor. While we were coming
home, every time we would hit a little bump, she would holler
with her back until she came to herself. She was unconscious
until we got to Belmont. We went to the doctor's house
and talked with him and she decided to come on home. We came
from Belmont to Charlotte. We took her to her apartment on
Fifth Street."
A. D
Nixon, witness for plaintiff, testified in part: "Before
this we walked across the road. Mr. Deal called the Deputy
Sheriff off and they were talking and I heard Mr. Fite say
'Don't have me arrested, Dennis. I understand it was
my fault, but I will fix everything up."'
Sam T.
Reid, witness for plaintiff, testified in part: "My home
is in Gastonia--I am engaged in the automobile repair
business. *** I repaired the two automobiles but did not tow
them in. *** The body of the Deal car was damaged a great
deal and the front of the Fite car was damaged a great deal.
The rear panel of the Deal car caved in. Spare tire was
shoved through the rear panel for a good ways. Far enough to
break the back of the back seat in two, the woodwork was
broken in half. The front seats were broken off, the rear
part of the frame was bent. The radiator, hood, and front
axle and frame of the Fite car was damaged. The radiator, the
frame, the hood and the front axle of the Fite car were
damaged, the radiator was pushed back into the fan. Mr.
Fite's car was a yellow Ford Coupé. ***"
Inez
McLendon, witness for plaintiff, testified in part: "We
left the apartment about fifteen of ten, or probably ten.
Miss Dempster, Mr. Deal, Mr. Lineberger and myself. We got in
the automobile--I rode in the back seat with Mr. Lineberger.
We started to Gastonia and turned at Fair Ground and changed,
I got in the front seat with Mr. Lineberger and Miss Dempster
and Mr. Deal got in the back seat. We started back to
Charlotte--we had not stopped on the road. Just on this side
of the Hatch Hosiery Mill we were coming back to Charlotte,
and all of a sudden we heard a terrific crash, we didn't
know what had happened, I thought a train had hit us. We were
shocked for a moment, I couldn't realize what had
happened. The first thing I realized some one was flashing a
light in the car. Three men were standing outside, later I
found it was the Sheriff, Mr. Warren and Mr. Nixon. I got out
first on the outside of the road and helped Miss Dempster
out. I was holding both arms around her to hold her up, she
could not stand up by herself. She was complaining 'Oh my
back' and I couldn't do anything for her. *** After
talking with him (defendant) she crumpled down on the
highway. That was back of our car, I couldn't help lift
her, I called to some of the men to help me."
The
defendant testified, in part: "I was coming from Lowell
on the Wilkinson Boulevard, I was on the right-hand side of
the road making a speed around forty-five miles an hour. When
this car all of a sudden loomed up ahead of me without a tail
light. I attempted to miss it and stop, but I failed. I hit
the car, but I did all in my power to prevent it. *** I broke
three of my front teeth off and broke my nose. I had two
black eyes and several gashes about the neck, body and a
sprained ankle." The defendant denied the material
allegations of plaintiff and her witnesses
a. B. Roberson, for defendant, testified in part: "I saw
the Deal car pass. The big glass door in front of the mill as
I walked up there and looked out they were coming on right
slow, the front light was out and it attracted my attention.
Then I went out, I kept watching them on until they went out
of light of the mill which shined on the road. There was no
light in the rear of their car. I saw the yellow car pass. I
didn't pay much attention to it, it seemed that neither
one were breaking any speed. He didn't attract my
attention very much. His lights were burning. Immediately
after that, I heard the noise and broke and ran up there. ***
The mill is about fifty feet from the road. I was on the
inside of the mill looking out of the big glass door when the
Deal car passed. I was attracted to the car because it was
running so slow and because it didn't have any lights.
The right-hand light was burning on the outside, the
left-hand light next to me was out. I also watched the tail
light. It attracted my attention and I noticed it, I was
coming out of the door at that time. I had done made my round...
