Hutchens v. Southard

• Decision Date: 12 April 1961
• Docket Number: No. 379,379
• Citation: 119 S.E.2d 205,254 N.C. 428
• Parties: Vernon Lee HUTCHENS, infant, by his Next Friend, Foy Hutchens, v. Delores Raye Boyd SOUTHARD. Foy HUTCHENS v. Delores Raye Boyd SOUTHARD.
• Court: North Carolina Supreme Court

Page 205

119 S.E.2d 205

254 N.C. 428

Vernon Lee HUTCHENS, infant, by his Next Friend, Foy Hutchens, v. Delores Raye Boyd SOUTHARD.

Foy HUTCHENS v. Delores Raye Boyd SOUTHARD.

No. 379

Supreme Court of North Carolina.

April 12, 1961

H. Smith Williams, Yadkinville, and R. Lewis Alexander, Elkin, for plaintiffs, appellants.

Hudson, Ferrell, Petree, Stockton & Stockton, Winston-Salem, by R. M. Stockton, Jr., and Norwood Robinson, Winston-Salem, for defendant, appellee.

PARKER, Justice.

Vernon Lee Hutchens was thirteen years old, when he was injured on 18 April 1958. This is stated in defendant's brief: 'It is conceded by the defendant that under the law of the State of North Carolina a defendant cannot obtain a nonsuit on the grounds of contributory negligence where the minor plaintiff is 13 years of age. The presiding Judge advised counsel that he was not granting the nonsuit because of contributory negligence but because of insufficient evidence of negligence on the part of the defendant.'

Plaintiffs' evidence tends to show the following facts:

North Carolina Highway No. 67 about 2 miles west of the town of East Bend has pavement 20 feet and 2 inches in width, runs east and west, and there it is intersected at right angles on each side by a dirt road about 18 feet wide running north and south. There is a center line on the pavement of the highway. There are Stop Signs beside the dirt road at the northwest and southeast corners of the intersection. At the northeast corner of the intersection there is a bank approximately 20 to 25 feet high some 12 feet from the northern edge of the paved portion of the highway. This intersection is 'in the open countryside.'

About 4:10 o'clock p. m. on 18 April 1958 Vernon Lee Hutchens riding his cousin's bicycle on the dirt road travelling south approached its intersection with Highway No. 67. Visibility was good: it was 'clear as a bell and the pavement was dry.'

This is a summary of Vernon Lee Hutchens' testimony: He was coming downhill on the dirt road sliding. There was a big, high bank on his left. He knew a Stop Sign was there. He stopped back from the pavement of Highway No. 67 about a foot. After he stopped--and he does not know how long he stopped--, he looked east and west on Highway No. 67 and across the highway. Seeing no automobile approaching, he started across the highway. He knows nothing more. He regained consciousness in a hospital. How long later, he does not know.

B. F. Holler, a State highway patrolman, arrived at the scene about 4:30 o'clock p. m. the same afternoon. When he arrived at the scene he saw a cloth top Chevrolet Convertible two-door automobile. This automobile was about 93 feet west of the intersection. It was crossways on the highway with its front end pointing back a slight degree toward the intersection. Its front end was near the south edge of the pavement. Its hood was buckled in front, its windshield was broken out in the middle, its right headlight was out, its bumper and grill were pushed backwards. On the front of its hood and on the hood emblem there was blood and bits of flesh. On the pavement underneath the front part of the automobile there was a pool of blood, bits of bone, and parts of flesh. A badly broken up bicycle was lying under the front of the automobile. Patrolman Holler testified: 'There were 93 feet of uninterrupted and continuous skid marks on the highway, headed west from the intersection. The marks veered off to the left of the road and led up to the Chevrolet. There were three black marks there. Toward Winston-Salem, east of the beginning of the three marks, there was one black mark 17 feet long in the westbound lane near the center line which led to dug-out places in the pavement at the beginning of the other marks. I found no debris or anything else at the end of the 17-foot mark and the beginning of the other, except I found the dug-out places in the pavement. ' He found broken marks on the dirt road about two inches wide about the same width as the tires on the boy's bicycle, and roughly one or two feet in length that lead up to the pavement of the highway approaching from the north. He doesn't remember whether these marks touched the pavement or not. The spaces between the marks were about 1 or 2 feet wide, and their total length was 19 feet and 5 inches. These marks went directly into the point on the highway where he found a gouged out place. Then he found a tire mark on the highway that was 17 feet long and that went into the same point. Defendant was driving the Chevrolet automobile on Highway No. 67, travelling west from the town of East Bend and approaching this intersection. She told patrolman Holler that immediately before the collision of the automobile with the bicycle on which Vernon Lee Hutchens was riding, she was going about 50 miles an hour. She said the boy came out of the dirt road standing up on a bicycle right in front of her. Defendant admits in her answer in both cases that she and three adults were sitting in the front seat of the automobile at the time of the collision.

Patrolman Holler testified: 'There is a dip in Highway No. 67 as you look toward East Bend from this intersection. From the point where I found the beginning of the three marks, or at the intersection where the scrape was, it is approximately three hundred feet to that dip in the highway. Some of a vehicle in this dip is visible from that point in the intersection where the scrapes were. Sitting in my car you could possibly see from the windshield up on the average car. There is a hill on the east side of this intersection, between the intersection and East Bend, a short distance approximately six hundred feet from this intersection. It is a pretty good hill. You could not see a car over it.'

Vernon Lee Hutchens was severely injured in the collision, sustaining, among other injuries, a compound comminuted fracture of his left leg, a fracture of the pelvic bone, and a fracture of his skull.

Foy Hutchens, father of Vernon Lee Hutchens, has received for treatment of his son's injuries sustained in the collision doctors, hospital and ambulance bills in a very substantial amount.

Vernon Lee Hutchens was in the fifth grade in school in 1956-57 [254 N.C. 432] and 1957-58. He did not pass, and his grades were failing. He was classified by his teacher as slow.

In this State a prima facie presumption exists that an infant between the ages of seven and fourteen is incapable of contributory negligence, but this presumption may be overcome. Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854; Caudle v. Seaboard Air...