Fleeman v. Citizens Transfer & Coal Co.
| Decision Date | 21 September 1938 |
| Docket Number | 93. |
| Citation | 198 S.E. 596,214 N.C. 117 |
| Parties | FLEEMAN et al. v. CITIZENS TRANSFER & COAL CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; Felix E. Alley, Judge.
Action by Bonny Fleeman, by and through her guardian, James T Bales, and another, against Citizens Transfer & Coal Company for injuries sustained in collision between ambulance and hearse in which plaintiff was riding, and defendant's truck, at street intersection. From a judgment in superior court sustaining defendant's assignments of error to judgment for plaintiff in county court, both plaintiff and defendant appeal.
On plaintiff's appeal, judgment affirmed.
On defendant's appeal, judgment dismissed.
This was an action instituted by plaintiff in the General County Court of Buncombe County to recover damages for a personal injury alleged to have been caused her by the negligence of the defendant. From judgment on the verdict in the County Court in favor of plaintiff, the defendant appealed to the Superior Court, assigning errors. In the Superior Court certain of the defendant's assignments of error were sustained and the case remanded to the County Court for a new trial. From the judgment in the Superior Court the plaintiff appealed to the Supreme Court. The defendant likewise appealed in order to preserve its exceptions noted in the trial court which were over-ruled in the Superior Court.
C. C Buchanan, of Sylva, and Williams & Cocke, of Asheville, for plaintiff.
Adams & Adams, of Asheville, for defendant.
The injury of which plaintiff complains resulted from a collision between a motor driven ambulance and hearse, in which plaintiff was riding and a motor truck of the defendant. The collision occurred February 8, 1937, at the intersection of Choctaw and McDowell Streets in the City of Asheville. The vehicle in which plaintiff was riding was proceeding westwardly along Choctaw Street, and the defendant's truck was being driven southwardly along McDowell Street.
Among other things, the plaintiff alleged and offered evidence tending to show that defendant's truck in approaching and entering the intersection of these streets was being driven at a rate of twenty-five miles per hour, and that the driver's view in approaching the intersection was obstructed.
The defendant noted exception to the following portion of the trial judge's charge to the jury in the County Court: "If you find, by the greater weight of the evidence, that the defendant's driver of the truck was unable to see when he was within 100 feet of that intersection in both directions on Choctaw Street for a distance of 200 feet and he failed when he was within fifty feet of the intersection to bring his car to a speed of 15 miles per hour, or that he was driving his car at that time in excess of 15 miles per hour, it would be negligence, and if you further find, by the greater weight of the evidence, the burden being upon the plaintiff to so satisfy you, that the failure to bring the car to a speed not in excess of fifteen miles per hour was the proximate cause of the collision and the consequent injuries to the plaintiff, the burden being upon the plaintiff to so satisfy you, that is, it was the cause or one of the causes without which no collision would have taken place and no injury would have been sustained by the plaintiff, then it would be your duty to answer the issue yes."
On appeal to the Superior Court defendant's assignments of error based upon this and another similar exception were sustained and the case remanded to the County Court for a new trial. The appeal brings the case here for review.
The determination of the question presented by the appeal to this court involves the correctness of the ruling of the Judge of the Superior Court, and requires an examination of the pertinent statutes relative to the speed of motor vehicles at intersections of highways.
Chapter 107 of the Public Laws of 1913 fixed the speed limit for motor vehicles upon approaching and traversing intersecting highways at seven miles per hour, and by Chapter 140 of the Public Laws of 1917, this speed limit was increased to ten miles per hour. The latter act was brought forward in the Consolidated Statutes as Section 2616. The Act of 1925, Chap 272, sec. 1(D), placed the speed limit of motor vehicles at fifteen miles per hour in traversing intersections of highways when the driver's view was obstructed, and this provision was brought forward in the Uniform Motor Vehicle Act of 1927, and appears in Chap. 148, Art. 2, sec. 4, in substantially the...
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