Hensley v. Briggs

• Decision Date: 09 March 1949
• Docket Number: 164
• Citation: 52 S.E.2d 5,230 N.C. 114
• Parties: HENSLEY v. BRIGGS.
• Court: North Carolina Supreme Court

52 S.E.2d 5

230 N.C. 114

HENSLEY v. BRIGGS.

No. 164

Supreme Court of North Carolina

March 9, 1949

Suit to recover damages for personal injury resulting from collision between automobile driven by defendant and a bicycle on which plaintiff was riding.

The evidence offered by plaintiff tended to show that the collision occurred on a street in the Town of Burnsville October 14, 1947, about 8:30 a. m. The defendant was driving his automobile south and the bicycle on which plaintiff was riding at the invitation of Eugene Banks was going north. Banks was pedaling and guiding the bicycle which he owned and plaintiff had no control over its operation or direction. Plaintiff and Banks were each 14 years of age and on the way to school. The paved surface of the road was 16 feet wide with firm shoulders on each side 4 feet wide. In order to avoid an automobile driven by J. R. Pate, which passed going in the same direction, Banks had turned his bicycle to the left, and was on the west shoulder 3 1/2 feet from the pavement and within half a foot of the ditch when the defendant coming from the opposite direction suddenly drove his automobile off the pavement and struck the bicycle breaking plaintiff's leg. At the time defendant was looking back over his shoulder. There was no other car there at the time. Pate's automobile had already passed.

Highway Patrolman Miller described the scene as he saw it immediately after the collision as follows: 'The Buick (defendant's automobile) was located 126 feet south of the nearest bridge. The road curved slightly to the right where the automobile was. It was parked 20 or 25 feet in the curve. From the bridge going in the direction the automobile was traveling the highway is straight for approximately 75 feet and then it's a right-hand curve not too sharp. Approaching the curve traveling south in an automobile visibility is clear and unobstructed 85 feet from the bridge. Beyond the curve and south of the curve the road is slightly upgrade and straight for 400 feet to the place where the highway crests * * * on the road back of the Buick automobile were skidmarks approximately 70 or 75 feet in length on the pavement * * * the right front wheel was about 5 feet off the pavement on the right side.'

The court permitted this witness, on cross-examination, to testify, over plaintiff's objection, that defendant (who had not gone on the stand) told him another vehicle traveling north 'crowded him and he left the road. ' However, plaintiff's evidence tended to show that the bicycle was 25 feet north of the crest when Pate's car passed it going north, and that Pate testified he met and passed defendant's automobile at the bridge.

At the conclusion of plaintiff's evidence, defendant's motion for judgment of nonsuit was allowed, and plaintiff appealed.

W E. Anglin, of Burnsville, for plaintiff-appellant...