Hanes v. Southern Public Utilities Co.

• Decision Date: 27 January 1926
• Docket Number: 365.
• Parties: HANES v. SOUTHERN PUBLIC UTILITIES CO. ET AL.
• Court: North Carolina Supreme Court

131 S.E. 402

191 N.C. 13

HANES v. SOUTHERN PUBLIC UTILITIES CO. ET AL.

No. 365.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Forsyth County; Schenck, Judge.

Action by Myrtle M. Hanes, administratrix of Charles D. Hanes deceased, against the Southern Public Utilities Company and another. From a judgment for plaintiff, defendants appeal. No error.

Civil action to recover damages for alleged negligence that resulted in the death of plaintiff's intestate. The material facts and assignments of error will be considered in the opinion.

Whether fenders were practical held for jury.

Manly Hendren & Womble and Swink, Clement & Hutchins, all of Winston-Salem, for appellants.

John C Wallace, Hastings, Booe & Du Bose, and Raymond G. Parker, all of Winston-Salem, for appellee.

CLARKSON J.

This case was tried in the superior court of Forsyth county, and plaintiff obtained a verdict, and the court below set the verdict aside as being contrary to the weight of the evidence. On the next trial, at the close of all the evidence, a judgment as of nonsuit was rendered against plaintiff, and an appeal was taken to this court, and the judgment was reversed. 188 N.C. 465, 124 S.E. 866. It was again tried, the usual issues of negligence, contributory negligence, and damages were submitted to the jury, and found for the plaintiff. Judgment was rendered on the verdict, and the present appeal taken to this court.

Defendants assign many errors as to the admission of evidence and the charge of the court below. The facts succinctly are:

C. P Shelton was taking his sister to work in Winston-Salem in a five-passenger Ford automobile, about 7 o'clock a. m., on the morning of November 22, 1922. He was driving the car, and he and his sister were on the front seat, she on the right side. On the way they picked up Chas. D. Hanes, the plaintiff's intestate, a printer, on his way to work; he sat in the rear seat. The top was up, open, with no curtains. They started up Salem Hill on Main street, going north, on the east side of the street; this was between Race and Mill streets. There was a line of cars all the way up the street on the east side going north, and the street car track was in the middle of the street, which was about 60 feet wide, from property line to property line. The Shelton car was following a laundry truck going north, which had slowed down and was skipping and running 8 to 10 miles an hour. About the middle of the block, C. P. Shelton attempted to pass the laundry truck, and turned to go around the truck, and got on the street car track, and, as he was turning back in front of the truck, there was a collision between the street car and auto, the rear door or rear left end of the Ford car coming in contact with the street car, and plaintiff's intestate was so seriously injured that he died next day about 12 o'clock.

Plaintiff's evidence tended to show that the street car was running from 20 to 25 miles an hour down grade, in the business section of the city, giving no alarm by gong or bell or otherwise, and the traffic congested with people going to work. When Shelton turned to go around the truck, the street car was 60 to 75 feet away, with nothing to obstruct the view of the motorman. Shelton was going up grade; the street car was going down grade. The grade at the point of collision was 2 1/2 to 3 per cent. per 100 feet.

On the other hand, the evidence for defendant tended to show: That Shelton was running 20 miles an hour at the time of the collision; the street car was going at a moderate rate of speed, not over 8 miles an hour, down Salem Hill on Main street; the grade was very slight. The Ford whipped from behind the truck and came upon the track; immediately when Shelton came from behind the laundry truck, the motorman put on the emergency brakes and threw the car in reverse as soon as he could, and just before it stopped the collision occurred. The bell or gong was ringing. The automobile when it collided had not slackened, but was getting faster. Shelton had passed the laundry truck 10 or 15 feet before he attempted to turn to the right to get off the street car track. That the street car had practically stopped when the Ford hit it--moved about 7 feet. That the Ford car ran into the street car. The rear left end of the auto struck the front left corner of the street car. The rear wheels of the auto were broken. The collision was in the residential section.

T. R. Williard, the motorman, got out of the street car and said to Shelton: "Jerry, what in the world was you thinking about?" He said: "Williard, I don't know, I didn't see you until my sister hollered. I will take all the blame on myself. I don't blame you a bit. You made a good stop."

These are the material conflicting facts. There was evidence on both sides to sustain the facts pro and con.

The plaintiff contends: That the defendants' negligence consisted of negligently and carelessly operating its street car at the place of the collision, at a dangerous and excessive rate of speed; that the defendants negligently and carelessly failed to keep a proper lookout ahead for vehicles upon said street in a dangerous and perilous position; that the defendants negligently and carelessly operated said street car down an incline or descent at an excessive rate of speed, and in violation of the ordinance of the city of Winston-Salem; that the defendants carelessly and negligently operated said street car at the place of collision at an excessive rate of speed, and failed to keep a proper lookout, failed to give timely warning, and failed to have said street car under proper control, and in violation of the laws of the city of Winston-Salem; that the defendants carelessly and negligently failed to provide said street car with a suitable and proper fender on the lead end of said street car, which are known and approved and in general use.

The ordinance of the city of Winston-Salem is as follows:

"Rate of Speed for Street Cars.--It shall be unlawful for any motorman or other person operating any street car in the city of Winston-Salem to run such car at a greater speed than is reasonable and proper, having due regard to the width, traffic and use of the street, so as to endanger the property, or life or limb of any person; provided, that a rate of speed in excess of fifteen miles per hour in the resident portion of the city and a rate of speed in excess of ten miles per hour in the business portion of the city, and a rate of speed upon approaching any curve, or upon a descent, in excess of six miles per hour, shall be a violation of this section."

The plaintiff contended that defendants were violating the ordinance at the time of the collision: (1) In operating a street car down a descent at a rate in excess of 6 miles an hour; (2) in excess of 10 miles an hour in the business portion of the city; (3) in excess of 15 miles an hour in the residential portion of the city; (4) that the street car was being operated at a greater speed than is reasonable and proper, having due regard to the width, traffic, and use of the street, so as to endanger the life, limb, or property of a person.

On the other hand, the defendants contended: That they were guilty of no negligence whatever. That plaintiff's intestate was guilty of contributory negligence. That C. P. Shelton ran the Ford automobile into the street car. That he suddenly whipped the Ford car around the truck and got in front of the street car. That he did not keep a proper lookout, and Shelton's negligence was the sole and only proximate cause of the collision. That defendants did not violate any of the provisions of the city ordinance. That there was a slight incline and no descent in the street. That the street car was being operated in a careful manner, and in a reasonable and proper way, and in full compliance with the city ordinance. That the defendant's street car was equipped with a "practical" fender as required by the statute.

These were substantially the conflict of facts and law between the litigants. We will consider only the material assignments of error in the conduct of the case in the court below.

Mrs. Cornelia Hanes, the mother of plaintiff's intestate, was a witness for plaintiff. On cross-examination, over plaintiff's objection, the following questions and answers were propounded by defendants and answered by witness:

"Q. Mrs. Hanes, Mrs. Myrtle Hanes, the administratrix in this case and the widow, is living out in Indiana, in Moosehart, Ind., isn't she? A. Illinois.

Q. How long has she been out there? A. Well, I kept her and the children six months after the accident until they could make arrangements to take her to Moosehart, Ill.

Q. They are all living there now? A. All out there.

Q. And they have been living there since when? A. Ever since six months after the accident.

Q. And they were out there in March, 1924? A. Yes, sir; I suppose so. They went there in six months after his death.

Q. So far as you know, she is not married again, is she, Mrs. Hanes? A. No, sir; she is not married.

Q. You say she stayed here for six months after the accident? A. Yes, sir; I kept her and the children, and provided for them six months after his death.

Q. They moved to what place in Illinois, did you say? A. Moosehart, Ill.

Q. They have been there all the time since, except one time when she came back here on a visit? She was back here on a visit one time? A. Yes, sir; she was back here on a visit, but the children wasn't.

Q. In fact, she hasn't been back here now in how long, a year, or longer than that? A. I don't really remember the month she left here in, but she was back here on a visit.

Q. They all live out there, and the children are in...