Henson v. Wilson

• Decision Date: 26 September 1945
• Docket Number: 162
• Citation: Henson v. Wilson, 225 N.C. 417, 35 S.E.2d 245 (N.C. 1945)
• Parties: HENSON v. WILSON et al.
• Court: North Carolina Supreme Court

35 S.E.2d 245

225 N.C. 417

HENSON v. WILSON et al.

No. 162

Supreme Court of North Carolina

September 26, 1945

Civil action for recovery of damages for alleged wrongful death G.S. s 28-173 and G.S. s 28-174.

Plaintiff alleges in pertinent part, briefly stated, that on 14 December, 1943, his intestate, Robert David Henson, a negro boy less than eight years of age, was killed when an International motor truck which was operated by defendant Arnold Wilson in hauling logs, as agent and servant of his co-defendants, the owners thereof, ran into said intestate as he was walking or standing on the embankment of a cut on a public road with high embankment on each side near Lincoln Park in Yancey County, North Carolina; that at the time defendant Wilson was familiar with the road and knew it to be narrow, with high embankment on each side and knew that small children who lived in the neighborhood along the road frequently used the road; and that at the time, and with such knowledge defendant Wilson recklessly carelessly and negligently operated said motor truck without due caution and circumspection, and without regard for the safety of persons on the road, and against the embankment on its left side of the road where plaintiff's intestate was standing or traveling, thereby causing his injury and death etc.

Defendants in joint answer filed admit that at the time in question defendant Wilson was operating said motor truck in hauling logs as agent and servant of his co-defendants, but deny all allegations of negligence. And for further answer and defense, defendants set up their version of the occurrence and plead contributory negligence of plaintiff's intestate and of his parents in bar of recovery.

Plaintiff in reply denies the averments of the defendants in their further answer and defense, and pleads the doctrine of last clear chance.

The evidence offered upon the trial in Superior Court tends to show, in the light most favorable to plaintiff, these facts The road, referred to as 'the main road,' on which plaintiff's intestate was killed, and on which the truck in question was traveling from the log yard at which it was loaded with logs, and leading by the colored Baptist Church passes in the vicinity of the house of Zeb Henson, the father of Robert David Henson, and intersects with a path or road on the left side leading to the Henson house. From that point the main road continues on steep grade through a cut. The embankment on the left side gradually rises in height above the road bed to about four feet at the point below which the body of Robert David Henson was found. Through this cut the road is very narrow--from seven to eight feet in width. The surface of the road slopes to the left. The surface on the right side is eighteen inches higher than that on the left. From the point of intersection with the Henson path or road toward the point where Robert David Henson's body was found the road is straight, the distance being sixty to seventy five feet, with nothing to obstruct the view. At that point there is an oak tree on the left side of the road with root ends extending out of the embankment of the cut. Nearby there is another tree. There is a wire fence on top of the embankment. There is practically no space between the wire fence and the edge of the cut.

The bed of the truck in question is about seven feet wide, and wider than the cab. And in respect thereto, the helper on the truck as witness for defendant, testified: 'This road is what might be called a cut. A high bank on the right and bank on the left. That road is just wide enough for one motor vehicle to travel at a time. It's so narrow we had to raise the mirror on the left side of the truck * * * In traveling over this road we went in same direction each trip. The wheels on our vehicle cut right along the foot of the embankment. The road is lower on the left than on the right. With a load of logs like we had that trip, the truck pitched towards the left of the road. The sides of our truck and logs had hit the roots where they were sticking out, that is, the roots of the tree where Robert David Henson was found. ' Also there was evidence that the body of Robert David Henson was found 'lying up and down the route which the truck had made,' on the left side of the road 'under the tree with his head a little up the hill,' and that a piece of his overalls and some of his hair were seen on the roots of the tree. Furthermore, all the evidence tends to show that the truck was going uphill, at slow speed not over five miles per hour, described by defendant Wilson as 'traveling in...