Green v. Bowers

• Decision Date: 28 September 1949
• Docket Number: 108
• Citation: 55 S.E.2d 192,230 N.C. 651
• Parties: GREEN v. BOWERS.
• Court: North Carolina Supreme Court

55 S.E.2d 192

230 N.C. 651

GREEN v. BOWERS.

No. 108

Supreme Court of North Carolina

September 28, 1949

This was an action for damages for a personal injury alleged to have been caused by the negligence of the defendant in the operation of a motor truck.

Plaintiff's evidence tended to show that an automobile containing several passengers, including the plaintiff, a child of four years of age, was standing on a road or street in Parmele. The automobile was headed east and was nearer the south side of the road, leaving space on the north side for vehicles to pass. Defendant's truck approached from the opposite direction--that is, from the east, moving west--and passed on the south side of the automobile or to the truck driver's left. No signal was given. Just before the truck came opposite, two adult persons from the automobile attempted to cross to the south side of the road in front of the truck. One got safely across, the other jumped back in time to avoid being hit, but the plaintiff, the little boy, jumped out of the automobile and was struck by the truck and injured.

According to the defendant's evidence, the automobile was standing on the north side of the road and the truck had to pass on the left. The defendant testified the horn was sounded, and that just as the truck got opposite, the plaintiff suddenly jumped out of the automobile and into the side of the truck.

There was verdict for plaintiff, and from judgment thereon defendant appealed.

Charles H. Manning and R. L. Coburn, Williamston for plaintiff-appellee.

Peel & Peel, Williamston, for defendant-appellant.

DEVIN Justice.

The court properly ruled that the plaintiff was not of sufficient age nor possessed of that degree of intelligence which would make him chargeable with contributory negligence, but, in response to request from defendant, charged the jury that 'If they found from the evidence that as the defendant was passing the car in which plaintiff had been riding, the plaintiff jumped from the car and into defendant's truck and that this action on the part of plaintiff was the sole proximate cause of his injury, they should answer the first issue no.' To this the court added, 'I give you this instruction at the request of the defendant, charging you that you would have to find that there was no negligence on the part of the defendant in passing the car, either in the way or manner in which he operated his truck, or in the...