Dickson v. Queen City Coach Co.

• Decision Date: 02 February 1951
• Docket Number: No. 536,536
• Citation: 63 S.E.2d 297,233 N.C. 167
• Parties: DICKSON, v. QUEEN CITY COACH CO. et al. CHAPPELL v. QUEEN CITY COACH CO. et al.
• Court: North Carolina Supreme Court

Page 297

63 S.E.2d 297

233 N.C. 167

DICKSON, v. QUEEN CITY COACH CO. et al.

CHAPPELL v. QUEEN CITY COACH CO. et al.

No. 536

Supreme Court of North Carolina.

Feb. 2, 1951

G. T. Carswell, Shannonhouse, Bell & Horn, Charlotte, for plaintiff Miss Bonnie Ethel Dickson.

Helms & Mulliss, Charlotte, Robinson & Morgan, Canton, and James B. McMillan, Charlotte, for plaintiff Mrs. J. T. Chappell.

McDougle, Ervin, Horack & Snepp, Charlotte, for defendants.

DENNY, Justice.

The evidence tends to show the following facts: The collision occurred on Wilkinson Boulevard near the intersection with Green Boulevard, about one block west of the Charlotte City limits. Wilkinson Boulevard is an extremely heavily traveled public highway. It has four lanes and is 37 feet wide. The maximum speed limit on this highway in that area is 40 miles per hour. The area is a business and industrial district. Green Boulevard, a paved highway 28 feet wide, intersects Wilkinson Boulevard to the north, and at the point of intersection the paved portion or mouth of Green Boulevard is 65 to 70 feet wide.

The Queen City bus, operated by the defendant James Q. Linker, with the plaintiffs aboard, was traveling west on Wilkinson Boulevard, between 8:15 and 8:30, p. m., on June 2, 1949, according to the plaintiffs' evidence, at a speed of between 60 and 65 miles per hour. A car headed west was parked on the north side of Wilinson Boulevard, a foot or so from the pavement and some 10 or 15 feet east of the intersection. A car operated by C. B. Wilkinson, eastbound, had stopped in the intersection and Linker, driver of the bus, saw Wilkinson signal for a left turn into Green Boulevard in front of the oncoming bus some 300 feet or so before the bus reached the intersection. Immediately ahead of the bus the driver of a westbound car traveling 10 or 15 miles per hour gave a signal for a right turn into Green Boulevard. The signal was given when the bus was 75 or 100 feet away, and the car started to turn off when the bus was about 50 feet from it. According to the plaintiffs' evidence, the bus swerved suddenly to the left and 'immediately after the swerving' the witness heard a noise about the center of the highway, from the front of the bus. The bus collided with an eastbound car operated by one Hairston, which had pulled up behind the Wilkinson car. The left front wheel of the Hairston car was knocked off and the axle was imbedded in the asphalt something like three-quarters of an inch, four feet north of the center line between the east and west traffic lanes, but slightly over half of the Hairston car was on its right hand side of the highway going towards Charlotte. Some of the debris from the wreck, such as oil, mud and glass, was on both sides of the center line of the highway. The point where the axle of the Hairston car was buried in the asphalt was approximately 25 feet west of the western edge of Green Boulevard, and no vehicle going west was immediately in front of the bus in either of the westbound lanes, when the collision with the Hairston automobile occurred. After the bus collided with the Hairston car, it ran a short distance up the road, then cut to the left at an angle of about 45 degrees across the left side of the highway, plunged off an eight-foot embankment and came to rest approximately 75 feet from the edge of the highway, 300 feet from the point of the collision. The plaintiffs were injured by the sudden impact of the bus when it stopped at the bottom of the depression after leaving the highway.

The defendants' evidence tends to show that immediately before the collision the Queen City bus was being operated astride the line between the passing lane and the extreme right lane, headed towards Gastonia, at a speed of about 35 or 40 miles per hour; that the driver of the bus, James Q. Linker, was watching the driver of the car who had given a signal to turn right into Green Boulevard. Linker testified that he 'heard the tires hollering on an automobile' and he 'glanced at the side' and the automobile hit the bus on the left-hand side and damaged the steering gear to such an extent he could not control the bus. '* * * I did not see the car that I had the collision with until about the time of the collision. * * * I was watching the man that was making the right-hand turn and this other fellow hit me. ' The driver of the bus further testified he never attempted to use the emergency brakes after the collision with the Hairston car, but tried to keep the bus in the road; that the emergency brakes were in good condition and the regular brakes were in good condition before the accident; that after the accident he couldn't get the brakes on because his foot was caught between the brake and the accelerator; that he was not sure whether the brakes were damaged or not. 'The tires on the bus were in good condition. It is my opinion if I had applied the brakes that traveling about 35 miles an hour I could have stopped, using the power brakes, in 75 feet. ' Walter E. Byers, a passenger on the bus and a witness for the defendants, testified: 'There was an eastbound vehicle on Wilkinson Boulevard, (which) had either stopped or very nearly come to a stop, attempting a left turn into Green Boulevard off Wilkinson, and as the bus approached the intersection a vehicle came up traveling in the same direction as this automobile that was attempting to turn left into Green Boulevard * * *; I heard the squeal of rubber on pavement. I was looking out the windshield and I saw this vehicle approaching going East swing around to the left of the car that was stopped * * * and come over into the westbound section of Wilkinson Boulevard. * * * I saw this car coming from across the center line 75 to 100 feet away from the bus.'

The defendants assign as error the failure of the court below to grant their motion for judgments as of nonsuit. They insist that the conduct of Hairston caused the collision which resulted in the injuries to the plaintiffs, and that the negligence of the driver of the Queen City bus, if any, was insulated by the negligence of Hairston, citing Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, and similar cases. These authorities are not controlling on the facts disclosed by the record on this appeal. On the contrary, we think when the evidence adduced in the trial below is considered in the light most favorable to the plaintiffs, as it must be on motion for judgment as of nonsuit, it is sufficient to withstand such motion. Riggs v. Akers Motor Lines, Inc., N.Car., 63 S.E.2d 197; Atlantic Greyhound Corporation v. McDonald, 4 Cir., 125 F.2d 849, 851. The identical question presented by this assignment of error was considered and disposed of adversely to the defendants in an opinion written by Barnhill, J., in Riggs v. Akers Motor Lines, supra, in which he discusses intervening and concurring negligence and the effect of such negligence with respect to proximate cause, citing numerous authorities.

In the case of Atlantic Greyhound Corp. v. McDonald, supra, the bus collided with an automobile and the steering apparatus was broken as a result of the collision and the air was let out of the airbrakes so that they would not work; but the hand brake with which the bus was provided was in good condition and no effort was made to use it. The bus proceeded down the road for 124 feet, went 50 feet across a soft shoulder, climbed a six foot embankment to the West of the highway, went 70 feet further, crashed into a sign board and overturned, injuring the plaintiff. According to the evidence, just before the collision with the automobile the driver of the bus rose in his seat for the purpose of adjusting his trousers. Parker, J., speaking for the Fourth Circuit Court, in passing on the identical question which is now before us, said: 'The excessive and unlawful speed on a narrow pavement where construction work precluded the use of one of the shoulders, the failure to slow down when approaching an oncoming car in the dangerous situation thus presented, the diversion of attention of the driver by the adjustment of his garments while in such a situation,--all of these were circumstances from which the jury might reasonably...