Guthrie v. Gocking
Decision Date | 30 November 1938 |
Docket Number | 531. |
Citation | 199 S.E. 707,214 N.C. 513 |
Parties | GUTHRIE v. GOCKING et al. |
Court | North 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.
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:
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