Guthrie v. Gocking

Decision Date30 November 1938
Docket Number531.
Citation199 S.E. 707,214 N.C. 513
PartiesGUTHRIE v. GOCKING et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Mecklenburg County; Luther Hamilton Special Judge.

Action by N.C. Guthrie against Anthony J. Gocking, trading as the A J. Gocking Company, and another to recover damages for personal injuries caused by a collision between defendants' automobile and the automobile of a third party. From a judgment sustaining defendants' demurrer plaintiff appeals.

Affirmed.

Action for personal injury to plaintiff caused by a collision between defendants' automobile and the automobile of a third party. It is alleged that the plaintiff, driving an automobile in the rear of defendants' automobile, was injured as a result of the collision, and that this was due to defendants' negligence. Defendants demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, in that it appeared from the facts alleged that the negligence of the third party was the sole proximate cause of plaintiff's injury. The demurrer was sustained and plaintiff appealed.

In action for injuries sustained when automobile driven by defendants' employee collided with automobile proceeding on wrong side of highway from opposite direction, causing third party's automobile to be thrown against plaintiff's automobile proceeding in same direction as defendants, a petition alleging that defendants' employee either observed or could have observed that third automobile was in a helpless condition and that, in spite of such knowledge, defendants' employee failed to exercise ordinary care to avoid collision, but failing to allege any fact to indicate helplessness or unconsciousness of driver of third automobile, failed to state a cause of action.

G. T Carswell and Joe W. Ervin, both of Charlotte, for appellant.

J. Laurence Jones, of Charlotte, for appellee.

DEVIN Justice.

The appeal presents the question whether a cause of action for negligence on the part of the defendants, proximately resulting in plaintiff's injury, has been sufficiently stated in the complaint.

The complaint alleges that the plaintiff, on the occasion referred to, was driving an automobile on the highway between Albemarle and Troy, North Carolina, traveling in an easterly direction, and that his automobile was in the rear and view of defendants' automobile which was proceeding in the same direction; that the automobile of defendant Gocking was being driven by the defendant Thompson, the agent and employee of his co-defendant, within the scope of his employment.

The plaintiff sets out the facts upon which he seeks to impose liability upon the defendants in the following language:

"That on or about July 20, 1938, at about 4 o'clock, P. M., the automobiles of the plaintiff and the defendant Gocking were being operated in an easterly direction on the North Carolina State Highway between Albemarle and Troy. That, at said time, the automobile of the defendant Gocking, which was being operated by J. E. Thompson, was approached by a third automobile which was being operated in a westerly direction on said highway. That said third automobile, at said time, was being operated to the left of the center of said highway, directly towards, and on the same side of the road as the automobile of the defendants. That, at said time, and until after the collision hereinafter referred to, said third automobile was obscured from the vision of the plaintiff, by reason of the fact that the automobile of the defendants was directly between said third automobile and the plaintiff. That said third automobile continued on the wrong side of said highway to approach the automobile of the defendants in a reckless and careless manner and at an excessive and dangerous rate of speed. That said J. E. Thompson either observed or, in the exercise of ordinary care, could and would have observed that said third automobile was in a somewhat helpless condition or was apparently unable to avoid the automobile of the defendants or that the driver of the third automobile did not intend to turn from said lane of traffic or was unconscious of the danger or that the driver of the third automobile would not or could not or was not going to drive said automobile to the right of the center of the road. That, in spite of such knowledge on the part of the said J. E. Thompson, or in spite of the circumstances which should and would, in the exercise of ordinary care, have put said J. E. Thompson on notice of such fact, said J. E. Thompson negligently and carelessly failed to exercise ordinary care to avoid colliding with said third automobile and negligently and carelessly failed to turn the defendants' automobile either to the right or to the left, to avoid a collision with said third automobile, but negligently and carelessly operated the defendants' automobile on said occasion in a reckless and careless manner, at an excessive and dangerous rate of speed under the circumstances, and negligently and carelessly failed to slow down the defendants' said automobile or to change the course thereof, and negligently and carelessly failed to give the plaintiff any sign, signal or warning of any kind or character of the approach of said third automobile, said J. E. Thompson thereby negligently and carelessly causing his said automobile to collide with said third automobile, the negligence of said J. E. Thompson causing said third automobile to be
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