Hughes v. Thayer
| Decision Date | 04 February 1949 |
| Docket Number | 671 |
| Citation | 51 S.E.2d 488,229 N.C. 773 |
| Parties | HUGHES v. THAYER. |
| Court | North Carolina Supreme Court |
The plaintiff, Mrs. Meta L. Hughes, administratrix sued the defendant, L. C. Thayer, under G.S. s 28-173, for damages for the death of her intestate, Darrell C. Hughes upon a complaint alleging that such death was proximately caused by the negligence of the defendant's employee Lloyd Vinson Pearce, while operating the defendant's motor truck in behalf of the defendant. The defendant conceded his ownership of the truck and the agency of Pearce for him. He also admitted that the plaintiff's intestate met death as a result of a collision between himself and the truck while the truck was being driven by Pearce 'in and about the business of the said defendant and within the scope and authority of the said Lloyd Vinson Pearce as the agent and employee of the defendant. ' The defendant denied however, that the plaintiff's intestate had suffered death on account of negligence on the part of Pearce, and pleaded contributory negligence on the part of the deceased as an affirmative defense.
The defendant offered no evidence. When viewed in the light most favorable to her, the plaintiff's testimony presented the tragedy set forth below.
On the early afternoon of November 14, 1947, Darrell C. Hughes, a small boy eight years of age, was returning to his home after a day in school. He was traveling with other school children on a school bus which was proceeding northward along a public road known as Centennial Avenue Extension near the city limit of High Point. After displaying its regulation 'Stop Signal' to notify approaching motorists that it was stopping to discharge passengers, the school bus came to a standstill facing in a northerly direction on the east half of the paved portion of the road approximately opposite the home of the plaintiff's intestate located on the west side of the road. The drivers of two automobiles following in the track of the school bus thereupon brought their vehicles to full stops on the road to the rear of the bus. At this point, Centennial Avenue Extension runs north and south, consists of a paved roadway twenty-one feet in width with dirt shoulders six feet wide on each side, and extends a distance of more than nine hundred feet to the north in a straight line.
After the school bus had stopped, the plaintiff's intestate and another school boy of approximately the same age descended from the right hand front side of the bus to the dirt shoulder east of the paved roadway. The other boy immediately passed in front of the stationary bus to the west side of the road, but the plaintiff's intestate waited until the 'Stop Signal' of the bus had been withdrawn and the bus and the two automobiles behind it had begun to move northward.
As the second trailing automobile cleared the roadway before him, plaintiff's intestate undertook to walk directly across the road towards his home 'with his hands in his pockets,' when he was struck by the front part of the southbound truck of the defendant and knocked to the pavement, suffering practically instantaneous death. The collision occurred 'in the middle of the highway,' and the truck proceeded at least one hundred and twelve feet beyond the place of impact before stopping. Prior to the accident, the driver of the truck traveled southward along Centennial Avenue Extension, which was straight for at least nine hundred feet. As he approached 'the school bus and those two cars that stopped behind it,' there was 'no obstruction or anything to prevent' him from observing the character and function of the bus, and the other attending conditions. He was driving at a speed estimated by witnesses at thirty miles per hour, and failed to give any warning of the approach of the truck by horn or other signal, and failed to reduce the speed of the truck prior to the collision.
Issues of negligence, contributory negligence, and damages were answered by the jury in favor of the plaintiff; the court rendered judgment thereon for the plaintiff and against the defendant; and the defendant appealed, assigning as errors the refusal of his motion for involuntary judgment of nonsuit and excerpts from the charge.
York, Dickson & Morgan, of High Point, for plaintiff, appellee.
Gold, McAnally & Gold, of High Point, for defendant, appellant.
The defendant puts his chief emphasis on this appeal on his exception to the refusal of his motion for judgment of involuntary nonsuit under G.S. s 1-183. He asserts the motion ought to have been allowed either on the ground that there was no sufficient evidence of actionable negligence on the part of the driver of his truck, or on the ground that the plaintiff's intestate was guilty of contributory negligence as a matter of law.
In passing upon a motion for a compulsory nonsuit under the statute, the court must assume the evidence in behalf of the plaintiff to be true and must extend to the plaintiff the benefit of every fair inference which can be reasonably drawn...
To continue reading
Request your trial