Dixon v. Brockwell
| Citation | 42 S.E.2d 680,227 N.C. 567 |
| Decision Date | 05 June 1947 |
| Docket Number | 746,747. |
| Parties | DIXON v. BROCKWELL et al. MARTIN v. SAME (two cases). WAKEFIELD v. SAME. |
| Court | North Carolina Supreme Court |
Four civil actions to recover for personal injuries allegedly sustained in a motor vehicle collision resulting from actionable negligence of defendant.
On the early morning of 15 August, 1943, a passenger car, owned and operated by Frank N. Martin, in which J.B. Dixon, Carl M Martin, George Wakefield, Jr., A. B. Davis and Bob Wycoff were riding as guests of Frank N. Martin, but having no control of the operation of his car, traveling from Durham N.C., toward Winston-Salem, N.C., on the Hillsboro highway and a tractor-trailer truck, or tractor-tanker unit owned by defendant and operated by his agent in the business of transporting petroleum products, and loaded with gasoline traveling toward Durham on said highway, collided on a curve at a point 7, 8 or 10 miles from Durham, in edge of Orange County, North Carolina, a short distance west of Eno station, resulting in injury to the driver and passengers in the car.
Four separate actions were instituted by J.B. Dixon, Carl M. Martin, George Wakefield, Jr., and A.B. Davis, respectively, passengers in the car of Frank N. Martin, and another victim was instituted by Frank N. Martin, all against the defendant, or defendants named in captions. By consent of counsel for all the parties all the cases so instituted were consolidated for trial. During the course of the trial the plaintiffs in the five actions submitted to voluntary nonsuits as to all defendants except Sterling M. Brockwell.
The several plaintiffs allege in their respective complaints, as acts of negligence proximately causing the collision in question, and on the trial offered evidence tending to show that as the tractor-trailer or tractor-tank unit of defendant approached the bridge over Stony Creek, and the point of impact, it was traveling at a speed of 50 to 60 miles per hour, and to its left side of the center line of the highway in the path of the car of Frank N. Martin, until too late to get back on its side of the highway.
On the other hand, defendant answering each of the several complaints, denies the allegations of negligence in each of the actions instituted by the passengers in the Martin car, and avers that, in so far as the plaintiffs, who were passengers in the Martin car, are concerned, the sole and proximate cause of the collision, and, in so far as Frank N. Martin is concerned, that the proximate cause or one of the proximate causes of the collision was the negligent and unlawful manner in which the Martin car was being operated, in respects specifically set forth, and as to each plaintiff pleads contributory negligence, and on trial offered evidence in reference to these averments.
The case was submitted to the jury upon one set of eight issues. The first three issues were as follows:
The last five were with respect to what damages, if any, is each plaintiff entitled to recover of the defendant.
When the charge of the court was concluded on Wednesday, before Thanksgiving, after hearing an expression of the jurors' wishes as to whether they preferred to commence their deliberations upon the issues on Friday morning, the court instructed the jury to return and commence deliberation on the issues on Friday morning.
The jury answered the first issue "No", but did not answer any other issue. Thereupon the court signed judgment in favor of defendant in each of the several actions--and the several plaintiffs gave notice of appeal to Supreme Court. Plaintiff A.B. Davis abandoned his appeal. Plaintiffs J.B. Dixon, Carl M. Martin and George Wakefield, Jr., bring up one appeal and assign error, and plaintiff Frank N. Martin, a separate appeal, and assigns error.
Elledge & Hayes, of Winston-Salem, for appellant J.B. Dixon.
Hastings and Booe and W.S. Mitchell, all of Winston-Salem, for appellant Carl M. Martin.
Robert A. Merritt, of Greensboro, for appellant George Wakefield, Jr.
Deal and Hutchins, of Winston-Salem, for appellant Frank N. Martin.
Womble, Carlyle, Martin & Sandridge, of Winston-Salem, and Hudgins & Adams, of Greensboro, for appellee Sterling M. Brockwell.
As to appeal by plaintiffs J.B. Dixon, Carl M. Martin and George Wakefield, Jr.:
These appellants assign as error, among others, the response of the court to a question from the jury.
In this connection it appears from the record that in charging the jury on Wednesday the court instructed the jury in respect to the first issue that if they, the defendant and Martin "both were guilty of negligence, and their negligence proximately contributed to this event and brought this about and became one of the proximate causes, concurring and cooperating with one another's negligence, then it would be your duty to answer this Yes." It also appears that after...
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