Harris v. Wright, 458
| Decision Date | 14 December 1966 |
| Docket Number | No. 458,458 |
| Citation | 151 S.E.2d 563,268 N.C. 654 |
| Parties | Robert Lee HARRIS and Ernest A. Turner, Admrs. of the Estate of Emmit Alston, Jr. v. Robert WRIGHT and John Calvin Upchurch. |
| Court | North Carolina Supreme Court |
Clayton & Ballance, Warrenton, and Mitchell & Murphy, Raleigh, for plaintiffs.
Teague, Johnson & Patterson and Joseph E. Johnson, Raleigh, for defendants.
The motion for judgment as of nonsuit could not have been allowed on the basis of contributory negligence on the part of plaintiffs' intestate, since a nine-year-old boy is rebuttably presumed incapable of contributory negligence. Hamilton v. McCash, 257 N.C. 611, 127 S.E.2d 214. Therefore, we must determine if there was sufficient evidence of actionable negligence on the part of defendants to withstand the motion for involuntary nonsuit.
Plaintiffs in their complaint allege that the defendant Wright was negligent in that (1) he operated the motor vehicle in a careless and reckless manner, (2) he failed to keep and maintain his vehicle under control, (3) he operated the same with unsafe equipment, to-wit faulty brakes, (4) he operated the vehicle at a rate of speed in excess of that warranted by conditions and surrounding circumstances, (5) he gave no warning to said minor that he was about to move his vehicle, either by sounding his horn or other audible signal, and (6) he maintained barrels on the rear of the truck, which made it impossible for him to see to his rear.
It is not negligence per se to back a car upon a highway. Newbern v. Leary, 215 N.C. 134, 1 S.E.2d 384. In discussing requirements for prudent operation while backing a motor vehicle, this Court in the case of Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, stated: 'The requirements of prudent operation are not necessarily satisfied when a defendant 'looks' either preceding or during the operation of his car. It is the duty of the driver of a motor vehicle not merely to Look, but To keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen. * * * 'It is his positive duty to look backward for approaching vehicles and to give them timely warning of his intention to back, when a reasonable necessity for it exists; and he must not only look backward when he commences his operation, but he must continue to look backward in order that he may not collide with or injure those lawfully using such street or highway. * * * " (Italics ours)
The evidence offered in the instant case shows that defendant Wright looked back before he put the truck in motion and continued to look backward in his direction of travel until the child was injured.
The plaintiffs offered evidence which would tend to show that there were barrels on the rear of the truck which prevented the defendant Wright from seeing through the rear window of the truck. We would not hold that the mere fact that Wright could not see Through the back window of the truck would, in itself, convict him of negligence in backing the truck, when he took reasonable precautions before so doing by looking to the right, left and backward. To so hold would be to ignore the accepted principles of negligence, particularly proximate cause. Further, it is common knowledge that many modern trucks and tractor-trailer combinations do not have rear windows, and such a...
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...its brief similarly fail to bolster its argument. North Carolina courts have simply not considered this problem. See Harris v. Wright, 268 N.C. 654, 151 S.E.2d 563 (1966); Hargett v. Gastonia Air Service, 23 N.C.App. 636, 209 S.E.2d 518 (1974); see generally Comment, the New North Carolina ......
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Johnson v. Ruark Obstetrics and Gynecology Associates, P.A.
...negligence or some other misconduct if he had survived." DiDonato, 320 N.C. at 426, 358 S.E.2d at 491; see also Harris v. Wright, 268 N.C. 654, 658, 151 S.E.2d 563, 566 (1966) (representative must allege defendant breached some duty owed decedent under circumstances). Of course, the DiDonat......
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Hoots v. Beeson, 456
...these, judgments of involuntary nonsuit were reversed.) Hedrick v. Tigniere, 267 N.C. 62, 65, 147 S.E.2d 550, 552; Harris v. Wright, 268 N.C. 654, 656, 151 S.E.2d 563, 565. (In these, judgments of involuntary nonsuit were affirmed on the ground there was insufficient evidence to support a f......