Graham v. City of Charlotte

• Decision Date: 20 December 1923
• Docket Number: 443.
• Parties: GRAHAM v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

120 S.E. 466

186 N.C. 649

GRAHAM v. CITY OF CHARLOTTE.

No. 443.

Supreme Court of North Carolina

December 20, 1923

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Action by Eugene B. Graham, Jr., against the City of Charlotte. Judgment for plaintiff, and defendant appeals. No error.

The material facts are as follows:

Eugene B. Graham, Jr., the plaintiff, testified, in part, as follows:

"I am plaintiff in this action; was 22 years old on June 18 1919. I was a clerk at the Charlotte Supply Company after I returned from France. I worked for Burwell & Dunn Company about three years. Was working there when I went to France at a salary or $15 or $20 per week. I was learning the drug business. I went to France on May 8, 1918, remaining there between 10 and 11 months. I got back from France on April 2, 1919. I was with the Thirtieth Division, Machine Gun Company, practically all the time, except when I was in Machine Gun school. I was sergeant, and they sent three sergeants from the company to this school at Langres. I was honorably discharged from the army when I got back. After I got back I loafed a month trying to get back to civilian life, and then went to work at the Charlotte Supply Company at a salary of $15 a week. I was injured on July 11, 1919. I was on a truck on Seventh street. The truck was the property of Sloan Sherrill's father. It was a straw ride. Sloan Sherrill was driving. I was called on the phone and invited to go. I had nothing else to do with the ride except to go by invitation. I was injured at night. We had gone to Rhyne's Park. Sloan Sherrill and Laura Alexander invited me to go. The ride was given in honor of Miss Helen Fewell of Rock Hill. Dr. J. R. Alexander and his wife were chaperoning the party. They accompanied us back to town in a separate car. The sides of the truck were taken off and cushions placed around the sides so we could sit that way. I mean the uprights were taken off. Had automobile cushions. There were about 15 or 16 people on the ride. As we sat on the cushions on the side of the truck our feet were hanging over the side of the truck. Immediately before the injury we came up toward the Elizabeth section to take the guests home, and were coming back towards Charlotte on Seventh street. Sloan Sherrill was driving. The truck had a closed cab. That (referring to the photograph) is the kind of cab the truck had on it, and the kind of truck, with the exception that the sides were off. As we were coming into Charlotte on East Seventh street, I was riding on the right-hand side coming into Charlotte. I was the first one on that side immediately behind the cab. Sloan Sherrill and Laura Alexander were in the cab. Miss Helen Fewell sat next to me, E. Y. Marsh sat next to her. Fred McCall and J. R Alexander, Jr., were also on the right. Some of the others were sitting in positions similar to mine on the left-hand side. The moon had been up, but I think it was going down. It was either going down or it had gotten cloudy. It wasn't as light as it had been when we started. It was not pitch dark, but it was not very light.

As to the first notice I had of being in danger, I don't know whether I heard some one holler or not. I had my head back talking to this lady, and when I turned I was hit. I was looking back towards the rear of the truck. The lady was between me and Mr. Marsh. I do not know anything about the fact that we were crossing this bridge. I could not see the outlines of the bridge. I was mashed between the fourth post and the side of the bridge. By the fourth post I mean the farthest toward Charlotte. After I was hit, I was knocked off--about 10 feet, I guess; and I must have been stunned and when I came to, I was lying on the street or sidewalk. I tried to stand up and go after the truck, and couldn't stand up. I looked up and my foot was practically off; just hanging by a little piece of flesh. I sat down and waited until the party came back. My right foot was hurt. It has a scar where it was hurt. My left foot was amputated. The X-ray showed a fracture of the large bone of my right leg, but it knitted back together by itself. The ankle was twisted, and it was about two months before it got straight, and at times now when I walk a great deal it bothers me. It hurts in the arch. I was taken to the hospital shortly after I was injured. Dr. Gibbon amputated my left leg, and Dr. Scruggs assisted him. I was suffering immensely by the time I got to the hospital. I had one foot off and one great big piece of flesh out of the other. They amputated the leg that night. After I came from under the influence of the anæsthetic I suffered immensely. I could not sleep in the day or at night. I had to put both legs in a certain position in the bed and could not move. Every time I moved the nurse had to move me. I was under the influence of narcotics for a long time. I was in the hospital from July 11th to September 5th, and was then taken home. I was confined to the bed about two months after I got home, and confined to the house after that for several weeks. After I finally got out, for the first few weeks I couldn't even use crutches. I had to be carried to the office and back. They would take me in the morning and get me again at night. Then I walked on crutches for about a year and a half. Then I got this artificial leg. After I got home, I suffered pain. My medical and hospital bills aggregated about $1,000. The fact that I lost one of my legs interferes with my ability to get about and attend to my business, especially during the hot weather. Year before last during the hot weather I had to take off this artificial leg for about two months on account of the heat. It galled the leg and pus formed, and I couldn't wear it. I am still working for the Charlotte Supply Company as a clerk. I have suffered humiliation and mental anguish on account of being crippled. I would say the truck was going at a speed of between 15 and 18 miles an hour."

S. S. Sherrill testified, in part, as follows:

"I am a mechanical engineer, graduate of Clemson College. I was driving the truck in question which belonged to my father. On that night I happened to be driving the truck, as Miss Alexander and I had arranged to give a party for Miss Helen Fewell of Rock Hill. I furnished the truck at the request of Miss Alexander and drove it. She invited the guests. The seats were just automobile seats placed around the edge. I put them there, placed on either side and behind. I have a diagram of the truck, and also the dimensions of this bridge, railing, and posts, as they existed at the time of this injury, and also as to the location of the parties on this truck at the time of the injury. The blueprint you show me is a correct diagram and truly represents the place where the truck struck the westerly post. [ Witness here draws a diagram on the floor.] The line nearest the jury box is the outside railing; there is a hand railing along there; that is on the northerly side. I took the measurements on October 15, 1921. The conditions were the same immediately after the injury. Before the night of the injury I didn't know anything particular about the relative location of the pilaster and side railing with reference to the curb of the street. The line nearest the jury box is the hand railing on the north side of the bridge. The railing is concrete, with a four-inch channel brace under it. If the curbing on the easterly and westerly sides of the street were to continue, the street line would run parallel to this line; that is, parallel to the outside line. The westerly pilaster extends from the curb, if it were extending in a straight line, 22 inches, plus or minus, into the street. By plus or minus, I mean that the measurement is not exact. On the easterly end of the bridge the post extends out beyond the curb line into the street 15 inches. The dimensions of the pilasters are approximately 18 inches square. The rail between the pilasters is approximately 12 inches wide. The diagram here represents the truck at the point I suppose it struck. I examined it the next day after the injury. Figure 1 represents myself driving, No. 2 Miss Alexander, No. 3 Mr. Graham, No. 4 Miss Fewell, and No. 5 Mr. Marsh. I had kerosene lights on the truck, standard lights for trucks. The bed was 6 feet 1 inch wide; there is a standard--they make them even wider than that. I put those cushions on it. As we approached the Seventh street bridge the truck was running about 15 or 18 miles an hour. The truck is regulated to a maximum speed of from 16 to 18 miles. It will not run any faster than that. The motor will be cut off if it exceeds that speed. The motor was running at that time. As we approached that bridge there were no lights there. You could just see a bridge and that was all, and you just assumed that the railing was there. On account of the condition of the night, and the lights, or the lack of them, I couldn't see the location of these pilasters. I didn't know that the pilasters on that bridge next to the traveled way of the street extended out into the street beyond the curb line. I was not able to ascertain that fact that night. As I was driving along I was just using ordinary precautions of driving, watching the road and seeing if there were any rough places--to get out of them. I was looking ahead. It was rough. The street had a hole in it, and I turned to miss it. I can't say exactly what the dimensions of that hole was. I would say it was 8 or 10 inches wide, about a foot or two feet long, and 1 1/2 or 2 inches deep. When I saw that hole I swerved to the right; I don't think it was but very little. I can't say whether I missed the hole. At the time I did not discover that any part of the car had struck the westerly pilaster.

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