James v. Carolina Coach Co.
Decision Date | 27 February 1935 |
Docket Number | 746. |
Citation | 178 S.E. 607,207 N.C. 742 |
Parties | JAMES v. CAROLINA COACH CO. |
Court | North Carolina Supreme Court |
Appeal from Superior Court, Durham County; Shaw, Judge.
Action by Percy L. James against the Carolina Coach Company. Judgment for plaintiff, and defendant appeals.
New trial.
Where motorist driving 20 to 25 miles per hour saw bus approaching at speed of 40 miles per hour on wrong side of road and was struck by rear end of bus swinging over to own side of road after passing automobile going in same direction, evidence of negligence held sufficient for jury.
This is an action for actionable negligence brought by plaintiff against the defendant. The defendant denied the material allegations of the complaint, and set up the plea of contributory negligence. The issues submitted to the jury and their answers thereto are as follows
The court below rendered judgment on the verdict. The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court. The material ones will be set forth in the opinion.
Smith Leach & Anderson, of Raleigh, and Hedrick & Hall, of Durham for appellant.
Bryant & Jones, of Durham, for appellee.
At the close of plaintiff's evidence, and at the close of all the evidence, the defendant made motions in the court below for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we can see no error.
It is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim, and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.
In Moseley v. R. Co., 197 N.C. 628, 635, 636, 150 S.E. 184, 188, it is said:
Taking the evidence in the light most favorable for plaintiff, and with the reasonable inference to be drawn therefrom, we think the evidence sufficient to have been submitted to the jury. The evidence on the part of the plaintiff was to the effect: That plaintiff and his neighbor, Ralph L. Evans, were taking their "kids" to the circus, on August 2, 1932. The plaintiff was driving a 29 model Pontiac coupé. Evans had three children and plaintiff one. Plaintiff's and one of Evans' were about two years old, and the other two were about four and six years old. Plaintiff was driving on Hillsboro road, in West Durham, in a westerly direction. Traffic was heavy. Fifteenth and Sixteenth streets run into Hillsboro road at an angle, but they do not cross it. Plaintiff was driving his car on the north side of the Hillsboro road on the right-hand side, about 3 feet from the curb. He had gotten beyond the curve, and the road was straight. The road was 30 feet wide where the collision took place. Plaintiff's car was between 5 1/2 and 6 feet wide. Half of the street would be 15 feet. On the opposite side of the road was Garrads Store and a barber shop. Cars were parked next to the barber shop. Plaintiff was driving between 20 and 25 miles an hour. He had his left arm out to give traffic signals.
Plaintiff testified:
"Two of Mr. Evans' children were standing down to the foot of the car, in front of his feet, between his feet and the dash board. And he had the other one in his lap. I think he had the baby one in his lap. I didn't have a kid in my lap at all. With all those children in the car with me and Mr. Evans, I could have driven the car with both hands in a normal way. I don't think it was more convenient for me to drive along there with my arm hanging out the window. I can drive a car pretty good with one hand. * * *
Q. You saw that car driving along in the middle of the road for a distance of more than 100 feet coming straight toward you, didn't you? A. Yes, sir.
Q. Why didn't you slow down your automobile? A. Well, I thought he was going to get back on his side of the road. * * * I could have run out through the field if I knew the bus was going to hit me.
Q. If you had applied your brakes and driven with reference to the conditions that existed in front of you, you would have never collided with the bus, would you? A. Yes, if I had set where the car was and applied my brakes and stayed right where the car was at, he would have hit me. * * * Well, I was already a way over on my side of the street, not farther than three feet from the curb. The bus was coming, and there was no reason why he couldn't get back on his side of the road. I thought he was going to until it was too late; after he had done hit me, it was too late then. There was not any reason why he couldn't pull back on his side of the road. I expected him to."
R. L. Lake was driving defendant's bus, headed toward Durham, in an easterly direction, going at least 40 miles an hour. The bus passed around the car of Mrs. H. W. Knight and two parked cars on the south side of the street, about 50 feet west of where the collision occurred, and traveling in the center of the highway and on plaintiff's side of the road.
Plaintiff testified: ...
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