Ennis v. Dupree, 526

• Decision Date: 12 June 1964
• Docket Number: No. 526,526
• Citation: 136 S.E.2d 702,262 N.C. 224
• Court: North Carolina Supreme Court
• Parties: Grady ENNIS, Administrator of the Estate of Cecil Mac Ennis, Deceased, v. Tallie DUPREE and wife, Sarah Dupree.

Page 702

136 S.E.2d 702

262 N.C. 224

Grady ENNIS, Administrator of the Estate of Cecil Mac Ennis, Deceased, v. Tallie DUPREE and wife, Sarah Dupree.

No. 526

Supreme Court of North Carolina.

June 12, 1964

Taylor & Morgan, Lillington, and Everette L. Doffermyre by Everette L. Doffermyre, Dunn, for plaintiff appellant.

Franklin T. Dupree, Angier, and Franklin T. Dupree, Jr., Raleigh, for defendant appellees.

PARKER, Justice.

This is the second appeal in this case. In the first trial of this case in the superior court of Harnett County at the 4 June 1962 Civil Term, judgment of compulsory nonsuit was entered at the close of plaintiff's evidence. Plaintiff's appeal was heard at our Fall Term 1962, and a majority of the Court were of the opinion that plaintiff's evidence made out a prima facie case of actionable negligence on the part of the defendants, and that a judgment of compulsory nonsuit on the ground that plaintiff's intestate, an eight-year-old boy, was guilty of legal contributory negligence was not permissible, because of the rebuttable presumption that the eight-year-old boy was incapable of contributory negligence. We reversed the judgment of nonsuit. Ennis v. Dupree, 258 N.C. 141, 128 S.E.2d 231.

This is said in Johnson v. Southern R. R., 257 N.C. 712, 127 S.E.id 521:

'When it has been determined on appeal that the evidence warrants the submission of the case to the jury, such determination of the Supreme Court is the law of the case and, in a subsequent hearing upon substantially the same evidence, the refusal of the trial court to submit the case to the jury is error. [ Citing authority.] But where the evidence on the subsequent trial is materially different from that on the former trial, the decision of the Supreme Court on the former appeal as to the sufficiency of the evidence is not conclusive. [ Citing authority.]'

The question for decision on the instant appeal is whether upon the retrial of this case plaintiff's evidence, considered in the light most favorable to him, is materially different from that in the former trial so as to warrant the judgment of compulsory nonsuit.

The majority opinion on the former appeal contains a brief summary of the pleadings of the parties and a summary of plaintiff's evidence at the first trial. For an understanding of the general facts and circumstances of the case, reference should be had to our former majority opinion. The pleadings in the retrial are not materially different from those in the first trial. We summarize here only such of the evidence introduced at the two trials as is necessary to a decision of the instant appeal.

Plaintiff's evidence in both trials shows the following facts:

About 3:40 p. m. on 16 February 1959 Mrs. Sarah Dupree, a school teacher, was driving a 1958 Plymouth station wagon on her right side of the road in a northerly direction on State Highway #55. This station wagon was registered in the name of her husband, the male defendant. Mrs. Hilda Rose Lee, Frances Hockaday and Sheila Dupree, a daughter of defendants, were riding in the station wagon as passengers.

State Highway #55, which has pavement 24 feet wide and dirt shoulders several feet wide on each side of the pavement, is straight for several hundred feet south of the place where the collision on the highway occurred. At or near the scene of the collision two dirt roads, one from the east and one from the west, intersect the highway. The road intersecting the highway from the east is slightly south of the road that intersects the highway from the west. The dirt road that intersects the highway from the east is about 12 feet wide and goes down into the highway at a fairly steep angle. There are no signs on the highway indicating this road. At the southeast side of this little road entering the highway from the east is an embankment over six feet high accordig to plaintiff's witness William Ragsdale, and over ten feet high according to the male defendant, who was examined as an adverse witness by plaintiff. According to measurements made by State Highway Patrolman Stuart Moore, the distance from the pavement to this embankment on the east side of the highway at or near the scene of the collision is 20 feet; it is 32 feet from the center of the highway to this embankment.

At or near the scene of the collision feme defendant was traveling on the highway at a speed of 40 to 45 miles an hour. It was open country, and the speed limit was 55 miles an hour. No other motor cars were near. Feme defendant was looking straight ahead. Suddenly a child on a bicycle appeared in front of her on the highway and in a second she hit the child. Her station wagon swerved to the left on the highway, went down on its west side about 120 feet, and turned over in a ditch on the left side of the highway. When her automobile came to rest, the bicycle was on the west side of the highway, and the dead body of plaintiff's intestate, a boy who was eight years, eleven months old, lacking three days, was lying in the ditch beside the station wagon. Plaintiff's intestate was riding a 26' bicycle. On the west side of the highway in the direction plaintiff was traveling, about 18 inches from the center line, there was a scooped-out place across from the right-hand ditch of the dirt road coming into the highway from the east.

On the first trial plaintiff's evidence did not disclose the direction in which the plaintiff's intestate was riding his bicycle, or where he was a short time before he was struck by the station wagon and killed.

At the retrial of this case plaintiff called as a witness one Joanne Tripp, who was not a witness at the first trial. She testified in substance, except when quoted: For one going north on Highway #55 she lives on the little dirt road entering the highway from the east. Her home is 400 or 500 feet up this little dirt road from where it goes into the highway. The little dirt road goes up 'a right good hill' from the highway to her home. 'Where my house is the little path is almost level, but on the west side of my house it starts down a slope toward 55, and when it gets within 50 to 60 feet from 55 it drops off sharply down a steep hill as it goes into the highway.' Plaintiff's intestate, Cecil Mac Ennis, lived with his parents on the opposite side of the highway from her home. On the afternoon little Cecil Mac Ennis was killed, she, a junior in high school and now 22 years old, got off a school bus and began walking up this little dirt road to her home. When she was about 55 feet from her home, Cecil Ennis riding a bicycle came up the little dirt road to where she was. 'I saw the bicycle, that is the same bicycle that little Mac Ennis was riding. It is about 26 inches. It is a small bicycle.' He wanted to know if his mother could borrow a wheelbarrow. She told him yes, and he said, 'I will take my bicycle back home.' He then turned around and started back down the hill. She testified on direct examination: 'After he started back down the hill I heard a noise, but I didn't pay any attention to it then. I heard...