Dixon v. Lilly
| Decision Date | 23 May 1962 |
| Docket Number | No. 527,527 |
| Citation | 257 N.C. 228,125 S.E.2d 426 |
| Parties | Benson DIXON, a minor without general or testamentary guardian, appearing herein by his duly appointed next friend, Mildred S. Dixon, v. Fred Page LILLY, Jr. |
| Court | North Carolina Supreme Court |
Richard L. Brown, Jr., D. D. Smith, Albemarle, for defendant-appellant.
Charles H. Dorsett, Troy, for plaintiff-appellee.
The sole question for decision on this appeal is whether or not the court below erred in failing to sustain the defendant's motion for judgment as of nonsuit.
The plaintiff alleged in his complaint that the 'defendant failed to sound a horn or to use any other warning device or to give any adequate or timely signal or warning to this plaintiff of the defendant's approach, or intended course * * *.' However, plaintiff did not allege that the defendant's truck was being operated without lights.
Moreover, there is no evidence tending to show that the defendant was operating his truck at an excessive rate of speed or that the defendant lost control of his truck and struck the plaintiff while he was walking along the shoulder of the road, as alleged in the complaint.
The plaintiff's evidence clearly establishes the fact that the contact between the truck and the boy occurred on the paved portion of the road and the tire or skid marks on the pavement after the collision tended to show that the driver of the truck pulled his truck to the left in an effort to avoid colliding with the plaintiff, instead of swerving his truck to the right as alleged in the complaint. Mrs. Norman testified: The testimony of this witness and that of the plaintiff fixed the point of collision on the paved portion of the road.
The evidence discloses that after the collision there were two dents in the right front fender of the truck, one on the right side of the fender just back of the right front headlight, and the other on the lower part of the fender just above the right front wheel.
We think the plaintiff's own testimony supports the conclusion that he ran onto the paved portion of the road and against the right front fender of the truck.
In our opinion, the evidence disclosed on the record is sufficient to exonerate the defendant from liability under the 'sudden appearance doctrine,' or that, insofar as the defendant is concerned, the plaintiff was injured as the result of an unavoidable accident--deplorable as it is--for which the defendant may not be held liable for damages. Knott v. Kinston Transit Co., 231 N.C. 715, 58 S.E.2d 696; Blashfield, Cyclopedia of Automobile Law and Practice (Perm.Ed.), ...
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Ennis v. Dupree, 542
...admit in their answer Cecil Mac Ennis died as a result of the injuries which he received in the collision. The Court in Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426, quotes from Blashfield, Cyclopedia of Automobile Law and Practice, Per. Ed., Vol. 2A, section 1498, as 'Drivers or owners of ......
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Koonce v. May
...old plaintiff on Big Wheelie tricycle did not show that defendant could have seen him in time to avoid collision); Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426 (1962) (ten year old boy darted from behind tree at night into side of truck--unavoidable accident); Brewer v. Green, 254 N.C. 615,......
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Ennis v. Dupree, 526
...miles an hour can be brought to a stop 105 feet from the point at which the brakes actually take hold. This Court said in Dixon v. Lilly, 257 N.C. 228, 125 S.E.2d 426, quoting from Blashfield, Cyclopedia of Automobile Law and Practice, Per.Ed., Vol.2A, § ''Drivers or owners of motor vehicle......