Hamilton v. McCash, 23

• Decision Date: 19 September 1962
• Docket Number: No. 23,23
• Citation: 127 S.E.2d 214,257 N.C. 611
• Court: North Carolina Supreme Court
• Parties: Frances G. HAMILTON, Administratrix of Michael Eugene Hamilton, Deceased, v. Robert Neil McCASH and wife, Ruth Crippen McCash.

Page 214

127 S.E.2d 214

257 N.C. 611

Frances G. HAMILTON, Administratrix of Michael Eugene

Hamilton, Deceased, v. Robert Neil McCASH and wife, Ruth Crippen McCash.

No. 23.

Supreme Court of North Carolina.

Sept. 19, 1962.

R.L. Coburn, Williamston, for plaintiff appellant.

James & Speight, by W.W. Speight and William C. Brewer, Jr., Greenville, for original defendants, Robert Neil McCash and Ruth Crippen McCash, appellees.

PARKER, Justice.

Plaintiff's evidence tends to show the following facts:

U.S. Highway # 64 is a paved road, with dirt shoulders, running eastwardly from the town of Williamston, through or by the town of Jamesville, toward the town of Plymouth. About one-half mile east of the town of Jamesville this highway is intersected on its south side by rural paved road # 1552, which enters it in a T-formation, but does not cross it. U.S. Highway # 64 on both sides of this intersecting road has pavement 24 feet wide and shoulders 8 feet wide. U.S. Highway # 64 west of this intersection is level and straight for about one-half mile, and the same way east for two or three miles. Immediately west of this intersection are two yellow lines on U.S. Highway # 64, with a white line between, indicating no passing. On the right shoulder of U.S. Highway # 64 traveling east there is a sign 300 feet west of the intersection indicating an intersecting road to the right. Approaching this intersection from the west traveling east there are no obstructions on the shoulders to impair a clear view.

About 11:25 a.m. on 1 August 1961 plaintiff's intestate, Michael Eugene Hamilton, a very smart, healthy, and normal boy nine years old, was riding a bicycle in an eastwardly direction on the right shoulder of U.S. Highway # 64, about a foot from the pavement, and approaching the intersection of roads above described. The shoulder the boy was riding on had little ruts or little bumps near the intersection.

Approaching this intersection at the same time with Michael Hamilton was a Ford van truck owned by McLean Trucking Company, and driven by its employee, Willie Bruce Pearce, which was going east on U.S. Highway # 64 toward the town of Plymouth. Following closely behind McLean's truck was a Ford station wagon registered in the name of Robert Neil McCash, and driven by his wife, Ruth Crippen McCash. Robert Neil McCash was a passenger in the station wagon. Willie Bruce Pearce called by plaintiff as a witness testified: "I saw Mrs. McCash was on my tail gate, about a car length. She had been driving behind me like that some two or three hundred yards because the yellow line was in our lane of traffic going east." He also testified: "The McCash car had been following me some two to five miles." The maximum speed on U.S. Highway # 64 for trucks is 50 miles per hour, 60 miles per hour for passenger cars, and the minimum speed for passenger cars is 45 miles per hour.

Pearce saw Michael Hamilton riding on a bicycle on the right shoulder of the highway going east about 200 yards from the intersection. He reduced his speed from 45 miles per hour to about 35 miles per hour, according to his guess, and blew his horn. When Michael was close to the intersection, Pearce saw his bicycle bumping along on the little ruts or little bumps on the right shoulder near the intersection. He had something under his right arm, and his left hand was on the left handle bar of the bicycle. At that time he was off the seat, between the seat and handle bars, with apparently one foot on the rural paved intersecting road, and looked like he had lost control of the bicycle. When Pearce was within 10 to 25 feet from Michael, Michael and the bicycle cut to the left in front of Pearce, who pulled his truck off the highway to his left into a ditch, missed striking Michael, ran down the ditch 50 or 75 yards, came back on the highway, and stopped. Pearce did not turn on his signal to indicate a left turn, when he cut left into the ditch. Pearce testified on cross-examination by McLean's counsel: "When I first saw the child having difficulty with his bicycle I reduced my speed and blew my horn." Pearce went back to where he "crossed the road," and found Michael between the two front wheels of the McCash station wagon, his head pointed south, feet north, and lying on his left side. Mr. McCash said to Pearce, "you have run over the little boy." Pearce denied it. Pearce testified: "Before I turned off the highway I saw the McCash Ford station wagon tail-gating my truck, about one car length from the tail gate." There was no other traffic on the highway near the scene at this time.

R.C. Sexton arrived at the scene five or ten minutes after the collision. The McCash station wagon was on the left or north lane of U.S. Highway # 64 opposite the intersecting rural paved road, and headed toward Plymouth. He crawled under the McCash station wagon. Michael was back of the front wheel with his head toward the middle of the highway. The wheel was on the bicycle, under the fender. The skid marks led to the McCash automobile. They came from the south side of the highway to where the child was lying.

When other people arrived at the scene, "the tension or spring mechanism" of the McCash automobile was lifted high enough for Darrell Clayton, Jr., and another to go under the automobile and to get Michael out from under the automobile. His shirt was partially torn. The back wheel of the bicycle was under the right front wheel of the automobile. Clayton carried Michael to a hospital in Plymouth. About 4:00 o'clock p.m. the same day Clayton attended a coroner's inquest. At that time he climbed under the McCash automobile, and found up under the chassis some dry blood and a small piece of hair.

Berry W. Parker, a State Highway Patrolman, arrived at the scene about 12:10 o'clock p.m. The defendants McCash told him the station wagon had been moved back two feet from where it came to a stop. Parker found 42 feet of skid marks directly behind the station wagon and two feet ahead of it, which were in the northbound lane of traffic. The last 12 feet of wheel marks were not the same width: the right wheel marks had about a two inch wider marking than the left wheel marks. Parker testified on cross-examination by McLean's counsel:

"The commencement of the station wagon skid marks are seven feet east of where the truck, the dual wheels, went off. The skid marks on the pavement were solid skid marks up to the last 30 feet, then the last 12 feet it was scuffs on the right wheel. At the point where the scuffs began I found some abrasions in the highway where the pavement--metal, scratchings, I call it scratchings and little groovings cut out in the highway and little marks in the highway, grooves. I found small bits of clothing, what I call T-shirt in this area for the last 12 feet this station wagon was traveling."

Parker testified he talked to Mr. and Mrs. McCash and Pearce. Mrs. McCash said she was driving the station wagon at the time: Pearce said he was driving McLean's truck. Mr. McCash's registration certificate showed he was the owner of the station wagon his wife was driving. Parker testified as to the following conversation between Mrs. McCash and himself.

"Mrs. McCash said she was traveling approximately 50 miles per hour and gained up on the truck, going to overtake it, and I asked her the distance she was traveling, she said 'closely' but she did not give any feet or anything, said, closely behind the truck to overtake it, and said she was headed east and she saw this truck suddenly swerve so she swerved behind it and then she said when she came to a stop she realized there was a child in front of her car and she said that she did not see no child and she had not run over no child, and not run over nobody, she had not run over anything and so I showed her where this blood was, showed her where the body was, the body had been moved. There was a puddle of blood in front of her car and we found hair, some blood stains and some hair up under the front part of her car, under the axle, on the axle, about the oil pan. I examined that hair and it appeared to be that of the child's head. I saw the child's head, it was torn up right bad.

"Mrs. McCash said she first saw the child while it was laying down on the pavement and she applied brakes and slid up to it. Mrs. McCash did not...