Howard v. Bell
| Decision Date | 08 November 1950 |
| Docket Number | No. 384,384 |
| Citation | 62 S.E.2d 323,232 N.C. 611 |
| Parties | HOWARD, v. BELL et al. |
| Court | North Carolina Supreme Court |
Lewis, Lewis & Hedrick and Hugh G. Mitchell, Statesville, for plaintiff, appellee.
Land, Sowers & Avery, Statesville, and Z. V. Turlington, Mooresville, for defendants, appellants.
The question for decision is whether the plaintiff's case survives the challenge interposed by demurrer to the evidence. The trial court answered in the affirmative, and we are inclined to uphold the ruling; conceding at once, however, that much could be written in support of the opposite view. It is clearly a border-line case.
The one circumstance which seems to favor recovery is the speed at which the defendants' truck was being driven in the obvious light of the condition of the road. The driver should have known and realized, in the exercise of due care, that his uncovered wheels, spinning at a high rate of revolution, were liable to pick up some of the loose rocks and hurl them in any direction. He was not entitled to use the road as if he alone were on it. Sic utere tuo, etc., applies on the highway as well as elsewhere. It is not only good law but also good morals.
Speaking to a similar question in Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159, 161, Ethridge, P. J., observed:
It is true the driver of defendants' truck disputes the plaintiff's testimony in respect of the condition of the road and the rate of his speed, but this is not to be considered on motion for nonsuit. Williams v. Kirkman, N.C., 61 S.E.2d 706; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609. We take the plaintiff's evidence as true in testing the sufficiency of his case. Graham v. North Carolina Gas Co., 231 N.C. 680, 58 S.E.2d 757. 'On motion to nonsuit, plaintiff's evidence will be taken as true and he will be given advantage of every fair and legitimate inference which it raises'. 7th Syllabus, Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661.
On cross-examination, the driver of the truck did admit that he saw some loose rocks and gravel on the road, 'not a great amount', and that 'this loose rock is damaging to that speed of 50 miles an hour', i. e., he means to say, and did say, as we understand his testimony, that he knew some damage was likely to result from running over the loose rock at such speed. This, then, is an admission coming from the defendants which is favorable to the plaintiff.
Two cases in our Reports need to be considered, Stewart v. Atlantic Coast Line R. R., 202 N.C. 288, 162 S.E. 547, and Gant v. Gant, 197 N.C. 164, 148 S.E. 34. The plaintiff relies on one; the defendants on the...
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