Edwards v. Mayes

• Decision Date: 03 November 1967
• Docket Number: No. 10359,10360.,10359
• Citation: Edwards v. Mayes, 385 F.2d 369 (4th Cir. 1967)
• Parties: Grady G. EDWARDS, Administrator of the Estate of Geneva Edwards Todd, Deceased, Appellant, v. Thomas Butler MAYES and J.D. Hollingsworth, t/d/b J.D. Hollingsworth Machine Shop, Appellees. Norman E. TODD, Administrator of the Estate of Henry Ashley Todd, Deceased, Appellant, v. J.D. HOLLINGSWORTH, d/b/a J.D. Hollingsworth Machine Shop, and Thomas Butler Mayes, Appellees.
• Court: U.S. Court of Appeals — Fourth Circuit

385 F.2d 369 (1967)

Grady G. EDWARDS, Administrator of the Estate of Geneva Edwards Todd, Deceased, Appellant, v.Thomas Butler MAYES and J.D. Hollingsworth, t/d/b J.D. Hollingsworth Machine Shop, Appellees.

Norman E. TODD, Administrator of the Estate of Henry Ashley Todd, Deceased, Appellant, v.J.D. HOLLINGSWORTH, d/b/a J.D. Hollingsworth Machine Shop, and Thomas Butler Mayes, Appellees.

Nos. 10359, 10360.

United States Court of Appeals Fourth Circuit.

Argued May 6, 1966.

Decided November 3, 1967.

William C. Morris, Jr., Asheville, N. C. (Lamar Gudger, Williams, Williams & Morris, and Gudger & Erwin, Asheville, N.C., on brief), for appellants.

William C. Meekins, Asheville, N.C. (Meekins & Roberts, Asheville, N.C., on brief), for appellees.

Before BOREMAN and J. SPENCER BELL,^* Circuit Judges, and FIELD, District Judge.

BOREMAN, Circuit Judge:

Grady Edwards, Administrator of the estate of Geneva Edwards Todd, and Norman E. Todd, Administrator of the estate of Henry A. Todd, brought actions against the defendants, Thomas Butler Mayes and J. D. Hollingsworth, doing ing business as Hollingsworth Machine Shop, for the wrongful deaths of their respective decedents.The Todds, husband and wife, were killed at 11:30 P.M. on November 14, 1963, when Hollingsworth's tractor-trailer, driven by Mayes, collided with their 1949 Dodge which was stalled in the right-hand lane of a fourlane interstate highway.

Jurisdiction in each case was based on diversity of citizenship and an amount in controversy in excess of $10,000.00.At trial the jury, upon special interrogatories, found that the deaths of the Todds were not caused by the negligence of the defendants.Plaintiffs appeal on the grounds that the court failed to instruct the jury (1) that a violation of G.S. § 20-141(b) of the Code of North Carolina pertaining to excessive speed was negligence per se; and (2) that the operation of a vehicle within the specified speed limit at a speed greater than reasonable under the circumstances in violation of G.S. § 20-141(a) and (c) also constitutes negligence per se.Defendants contend that no objection was made to the court's charge, that no such instructions were offered, and, finally, that if the court's failure to so instruct the jury was error it was harmless because decedents were contributorily negligent as a matter of law.We conclude that the court failed to properly instruct the jury and that such failure was plain error necessitating a new trial notwithstanding plaintiffs' failure to request such instructions or to object to their omission.

The accident occurred on Interstate 85 in Davidson County, North Carolina, three miles south of Lexington.Interstate 85 is a four-lane, divided highway running generally in a north-south direction.Looking south from the point of collision, the highway is straight for 1.6 miles.The maximum speed in the area of the collision is 65 miles per hour.The Todds had left Asheville, North Carolina, at 4:00 P.M., bound for Raleigh.They had been traveling on Interstate 85 in a northerly direction.Mr. Todd was driving and his wife and infant child were riding beside him on the front seat.

Mayes, called as an adverse witness by the plaintiffs, testified that he was driving at a speed of 45 to 50 miles per hour, that the lights on the Todd car were not showing, that he did not see the car until he was within a very few feet of it, and he did not have time to apply his brakes.

Witness Freitag testified that about twenty minutes prior to the accident he had been traveling north and had narrowly avoided collision with an old car which was stopped in the righthand lane with no lights showing; that the collision with the defendant's truck took place near the spot where he had seen the car and that when he heard of the accident he reported these facts.

Patrolman Plummer of the North Carolina State Police testified that he had observed the Todd car an hour or an hour and a half prior to the accident.It was parked on the shoulder of the road with a truck behind it and at that time the lights were showing on the Todd car but seemed weak and dim.Plummer further testified that he was later at the scene of the accident; that after the bodies were removed from the Dodge he had an opportunity to observe the light switch; that the switch was turned to the "first notch"; that in his experience, the position of the switch indicated that the parking lights had been turned on.

Charles Bullard was a witness to the accident.He stated in a deposition offered by the defendants and admitted in evidence that he had been proceeding north on Interstate 85 when he noticed the Todd vehicle near an exit.To its rear, in a pushing position, was a 1953 Chevrolet occupied by a friend of Bullard's.Bullard stopped his car near the Todd vehicle and alighted.Marvin Bowman, who had been riding with Bullard, drove the Bullard car home.Bullard inquired of the Todds what the trouble was.Mrs. Todd told him that the car would not start and asked that it be pushed.Bullard, using the Chevrolet, pushed the Todd car a short distance without success and then pulled the Chevrolet off the road, to the right, and stopped alongside the Todd car which remained on the paved portion of the highway.Bullard again spoke to the Todds and told them of a truck stop a short distance up the road, offering to take them there.Mr. Todd, appearing to Bullard to be drunk, mumbled something and then asked to be pushed again.Bullard then pushed the Todd vehicle five or six hundred feet and realized it would not start.Again the Todd car remained on the highway.Bullard again drove the Chevrolet from the paved portion of the roadway and spoke to the Todds, telling them that their car should be off the highway.However, at Todds' renewed request, Bullard pushed their car for about one-half mile and again pulled the Chevrolet from the roadway when the Todd car would not start.He stated that he again advised the Todds that their car should be removed from the paved highway but apparently Mr. Todd was drunk and unable to talk and Mrs. Todd merely smiled.Bullard was preparing to make another attempt to start the Todd car by pushing when he saw the headlights of Hollingsworth's tractor-trailer approaching from the south.Horrified, he stood by as that vehicle collided with the rear of the Todd car and pushed it a distance of 225 feet.When the vehicles came to a halt the tractor was atop the Dodge which was completely crushed from the rear and the top.Mr. and Mrs. Todd were killed instantly.A half-empty fifth of Vodka was found on the front seat near Mrs. Todd.

On adverse examination by plaintiffs' counsel, Bullard, in his deposition, further stated he had told Patrolman Plummer, when questioned by that officer at the scene of the accident, that the lights on the Todd car were lighted when he first began the pushing procedures but at the time of the accident the lights were not burning although the lights of the Chevrolet were on at all times.When recalled to the witness stand, Officer Plummer testified that he spoke to Bullard after the accident and Bullard told him that the lights of the Todd car were on at the time of the collision.

Witness Clark testified that, after the accident, he examined the battery in the Todd car at the scene; that the battery was not damaged in any way and that it was "dead" at the time he tested it.

There was expert testimony based upon an autopsy which indicated that Mr. Todd was intoxicated.

Mayes stated that he left Greenville, South Carolina, and was destined for Henderson, North Carolina, where he was to deliver several textile machines.A tachograph installed on the truck to record the speed of the vehicle indicated that at the time of the accident the truck was traveling at a speed of 70 miles per hour.However, there was a serious conflict in the evidence as to the actual speed of the truck.In addition to Mayes' testimony that he was driving at a speed of 45 to 50 miles per hour there was evidence that the tachograph had not been operating during the entire trip.A person familiar with reading such a device testified that the tachograph indicated that the truck had been traveling at 70 miles per hour for the entire trip.Defendants argue that this was impossible because it had taken the truck three hours and ten minutes to go from Greenville to the scene of the accident, a distance of 146 miles; that if the vehicle had been driven at a speed of 70 miles per hour it would have traveled 210 miles in that period of time and thus would have been sixty miles beyond the scene of the accident.

In a diversity case the federal courts follow the applicable state law which, in this case, is the law of North Carolina.The maximum speed on interstate highways within North Carolina is fixed by statute.G.S. § 20-141 provides in pertinent part:

"(b) Except as otherwise provided in this chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:

"* * * * * *

"(5) Whenever the State Highway Commission shall determine upon the basis of an engineering and traffic investigation that a higher maximum speed than those set forth in subdivisions (1), (2), (3) and (4) of this subsection is reasonable and safe under the conditions found to exist * * upon any part of a highway designated as part of the interstate highway system * * *, said Commission shall determine and declare a reasonable and safe speed limit, not to exceed a maximum of 65 miles per hour, * * *."

The speed limit, at the place of the accident on Interstate 85, was 65 miles per hour.

It is well settled by an unbroken line of North Carolina Supreme Court decisions that the operation of a motor vehicle in excess of the applicable limits set forth in G.S. § 20-141(b) is negligence per se.Smart v. Fox, 268 N.C. 284, 150 S.E.2d 403(1966);Rudd v. Stewart, 255 N.C. 90, 120 S.E.2d 601, 607(1961);Stegall v. Sledge, 247 N.C....