Gardner v. Black

• Decision Date: 22 May 1940
• Docket Number: No. 539.,539.
• Citation: 217 N.C. 573,9 S.E.2d 10
• Court: North Carolina Supreme Court
• Parties: GARDNER. v. BLACK.

9 S.E.2d 10

217 N.C. 573

GARDNER.

v.BLACK.

No. 539.

Supreme Court of North Carolina.

May 22, 1940.

Appeal from Superior Court, Mecklenburg County; F. T. Phillips, Judge.

Action by Ralph Gardner against R. C. Black for personal and property damages sustained by plaintiff as result of collision between plaintiff's automobile and a mule of defendant, wherein the defendant filed a counterclaim. From a judgment for plaintiff, the defendant appeals.

Reversed.

Civil action for recovery of damages to person and property resulting from alleged actionable negligence.

Plaintiff, resident of Mecklenburg, alleges that on the night of 1 December, 1938, he was injured and suffered personal and property damage as the result of a collision between his automobile and a mule of defendant, which was negligently permitted by defendant to run at large on the highway within the limits of Mecklenburg County and Charlotte township and in violation of Section 1849 of the Consolidated Statutes of North Carolina.

Defendant denies the material allegations of the complaint, and pleads the contributory negligence of plaintiff. And, by way of counterclaim, defendant sets up cross action for recovery of the value of the mule killed in the collision with plaintiff's automobile as the result of alleged actionable negligence of plaintiff.

On trial below plaintiff in behalf of himself testified that: "On December 1, 1938, I had been to see a friend of mine about half a mile down the road from Mr. Black's on the Plaza Road. It was a clear cold night. I was by myself. The road was hard surfaced and practically straight. I was coming to Charlotte. I was driving along probably between 40 and 45 miles an hour on the right hand side of the pavement and all of a sudden I saw this mule start to lope across the highway and I slid into the other lane of the highway to my left. I was sliding my tires with my brakes on when the mule ran into the side of my car. It ran into the right hand side of the car. The mule came from a little narrow field between two houses. When I first saw the mule, he was at the edge of the highway, running as hard as he could. There were two mules. The mule that ran into me was probably 15 or 20 feet from my car when I first saw him. My lights did not show the field, they just showed the highway and the edge of the highway. * * I talked to Mr. Black about the accidentand he said as far as he was concerned it was just an accident and he would do nothing; that it was his mule; that he couldn't help it being out and that he didn't know that it was out. * * * I skidded my wheels every bit of ten feet before the impact occurred, possible more than that."

Defendant, reserving exception to the refusal of the court to grant his motion for judgment as in case of nonsuit, offered evidence as follows: R. C. Black, Jr., testified: "I am my father's assistant on the farm. The mules were kept in a horse barn which has two stalls on each side and a hall in the middle and a crib on each side and a gate at the back, a five strand barbed wire fence makes a square enclosure around the barn. The fence is strung on cedar posts. The fence was in good condition on December 1, 1938, when the mules were put in the lot, the wires were up and nailed to the posts and the gate was closed. * * * I investigated to see how it got out and found that they had broken a top strand of the wire. I do not know how long it had been broken. * * * There was nothing wrong with the doors to the barn. The doors to the barn were open so that the mules might run out into the lot. The mules are not confined to the stable but are enclosed inside the fence. The fence was approximately 4¹/₂ feet high. I have never seen a mule and I have never owned one that jumped the fence. When the top strand was broken, the fence was about four feet high."

R. C. Black, Sr., in behalf of himself, testified in part: "Immediately after the accident * * * I got up and went down there and the mule was lying there, dead. There were two tire marks on the highway approximately 50 feet long. I didn't measure them. They started approximately 50 feet from where the automobile was standing. * * * At night my mules are confined in the lot and in the barn, the doors to the stables are never closed but the mules are confined by the fence which is an ordinary barbed wire fence put up on cedar posts, five strands high, * * * approximately 5 feet high. The next morning I went to the barn lot and the gate was closed. I inspected the wire fence and at the corner I found that part of the wire was down. I had been out to the barn lot the afternoon before the accident. At that time the condition of the...