Gillis v. Transit Corp. of Norfolk

• Decision Date: 16 March 1927
• Docket Number: 87.
• Citation: 137 S.E. 153,193 N.C. 346
• Parties: GILLIS v. TRANSIT CORPORATION OF NORFOLK.
• Court: North Carolina Supreme Court

137 S.E. 153

193 N.C. 346

GILLIS v. TRANSIT CORPORATION OF NORFOLK.

No. 87.

Supreme Court of North Carolina

March 16, 1927

Appeal from Superior Court, Halifax County; Ward, Special Judge.

Action by Pearl Gillis, by her next friend, against the Transit Corporation of Norfolk. Judgment for plaintiff, and defendant appeals. New trial awarded.

Failure to charge plaintiff must prove particular negligence pleaded held not error, where evidence showed only negligence pleaded.

John W Hester, of Oxford, and Travis & Travis, of Halifax, for appellant.

George C. Green, of Weldon, for appellee.

ADAMS J.

The plaintiff brought suit to recover damages for personal injury alleged to have been caused by the negligence of the defendant. She introduced evidence tending to show that about 8 p. m. on June, 12, 1926, she was going from Halifax to Weldon in a Dodge sedan, owned by her father and driven by another; that her father and her brother were on the front seat with the driver, and that she, Mrs. Marks, and two others occupied the seat in the rear; that the car passed over a bridge and came to a stop on the right side of the road about 15 feet away; and that the defendant's bus moving in the opposite direction, came round the curve at the rate of 40 or 45 miles an hour, struck the car, hurled it against the bridge, and injured the plaintiff.

There was evidence for the defendant tending to show that the speed of the bus, when approaching the bridge, did not exceed 15 miles an hour; that the driver had the bus under control gave the usual signals, and observed due care; that the sedan came down the opposite hill very rapidly, ran upon the bridge "more than midway the road," lurched, swerved toward the other side, and caused the collision.

There was no plea of contributory negligence, and the two issues of negligence and compensatory damages were answered in favor of the plaintiff, for whom judgment was accordingly given.

With respect to negligence, the allegations are these:

"(1) When the car in which the plaintiff was riding had crossed the second branch between Weldon and Halifax, known as Dry Pond branch, the car stopped on the extreme right-hand side of the highway to await the passing of the bus of the defendant, which was approaching at a rapid and unlawful rate of speed, to wit, between 40 and 45 miles per hour; (2) that the defendant's bus was being driven at an unlawful rate of speed and was negligently, wantonly, and recklessly driven into the car in which the plaintiff was riding, wrecking the car and injuring the plaintiff; (3) that the defendant was guilty of gross, willful, criminal, and wanton negligence, and was utterly and criminally indifferent to the rights of the plaintiff."

An allegation of negligence must be sufficiently specific to give information of the particular acts complained of; a general allegation without such particularity does not set out the nature of the plaintiff's demand sufficiently to enable the defendant to prepare his defense. Conley v. Railroad, 109 N.C. 692, 14 S.E. 303; Lassiter v. Roper, 114 N.C. 17, 18 S.E. 946. Under this principle the only specific allegations of negligence are that the bus was driven at an unlawful rate of speed and on the wrong side of the road at the time of the collision. As to the latter allegation, this instruction was given the jury:

"If a person in operating a motor vehicle hits another car or person to the left of the center of the road in the direction he is going, that of itself is negligence, irrespective of the speed of the car."

The appellant excepted. The instruction was not given in the terms of the statute, but, when considered in connection with the allegations and the evidence, we cannot say that it constitutes reversible...