Johnson v. Lewis
| Decision Date | 29 January 1960 |
| Docket Number | No. 604,604 |
| Citation | 251 N.C. 797,112 S.E.2d 512 |
| Court | North Carolina Supreme Court |
| Parties | Rosa Lee JOHNSON v. Harold Wrey LEWIS. Efird JOHNSON, bnf Rosa Lee Johnson v. Harold Wrey LEWIS. |
Louis K. Newton, Wilmington, and Herring, Walton & Parker, by Ernest E. Parker, Jr., Southport, for plaintiffs, appellees.
Robert D. Cronly, Jr., Wilmington, and Varser, McIntyre, Henry & Hedgpeth, Lumberton, for defendant, appellant.
Plaintiffs and defendant offered evidence. Defendant assigns as error the denial by the court of his motions for judgments of nonsuit renewed at the close of all the evidence. Defendant also assigns as error the refusal of the trial court to submit an issue as to contributory negligence in the case of Rosa Lee Johnson, tendered by him.
Plaintiffs and defendant live in Bolivia, Brunswick County. William King Johnson is the husband of Rosa Lee Johnson, and the father of Efird Johnson. Efird Johnson on 5 June 1957 was five years old.
Plaintiffs' evidence tends to show the following facts: On 5 June 1957, William King Johnson owned a 1953 Pontiac automobile. The tires on the front wheels were new, the tires on the rear wheels were worn down considerably and slick. About 5:00 o'clock p. m. on that day, William King Johnson was driving his automobile to Wilmington, travelling in a northerly direction on Highway No. 17. His wife was on the front seat, and his son, Efird, was on the rear seat. It had been raining, and the hard-surfaced road was wet and slick. He was driving on his right hand side, and approached a long gradual curve. As he entered the curve, he slowed his automobile to a speed of about 35 to 40 miles an hour. Just as he began to leave the curve, his automobile began skidding skidded about 30 feet, turned around, and stopped on the right side of the road going south. He immediately started down the road to turn, and had travelled about 25 feet, when the front part of an automobile driven by defendant ran into the rear end of his automobile. Defendant's automobile stopped at the point of impace, and his automobile travelled about 50 feet before it stopped off the highway.
Defendant's automobile was travelling south on the same highway, and was about 500 yards from William King Johnson's automobile, when the Johnson automobile began to skid. William King Johnson could see north along the highway at the point where he started skidding about threefourths of a mile, and saw defendant's approaching automobile, but he had no opinion as to its speed at the time. Defendant testified: 'I was not going more than 25 to 30 miles at the time he spun out in front of me.' Defendant also testified that the Johnson automobile could not have been more than two car lengths in front of him, when it spun out in front of him. During the time William King Johnson's automobile was skidding, and until the collision occurred, there were no other automobiles between his automobile and defendant's automobile.
In the collision the front seat of the Johnson automobile was knocked loose, and pushed around toward the dashboard of the automobile. Immediately after the collision Rosa Lee Johnson was between the front and rear seats, and a seat--the record does not state which seat--was pulled off of Efird Johnson, who was unconscious.
Plaintiffs' evidence, considered in the light most favorable to them, and considering so much of defendant's evidence as is favorable to them, and ignoring defendant's evidence which tends to establish a different state of facts, or which tends to contradict or impeach plaintiffs' evidence, Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307, permits these legitimate inferences to be drawn therefrom, that defendant failed to keep a proper lookout in his direction of travel, that if he had performed this duty the law imposed upon him, he could have seen some 500 yards ahead of him the Johnson automobile skidding on the road and out of control, and could in the exercise of due care have stopped his automobile before running into the rear of the Johnson automobile with such force as to knock loose the front seat of the Johnson automobile, that defendant was guilty of negligence, which proximately caused plaintiffs' injuries. The trial court properly overruled the motions for judgments of nonsuit. Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627; Daniel v. East Tennessee Packing Co., 215 N.C. 762, 3 S.E.2d 282.
In respect to the tendered issue of contributory negligence in Rosa Lee Johnson's case. William King Johnson had owned the automobile about two years. He worked in Wilmington, and drove his automobile to and from work. Rosa Lee Johnson testified: She did not ride in the automobile every day. There is no evidence in the record in either plaintiffs' or defendant's evidence tending to show that Rosa Lee Johnson knew the tires on the rear wheels of the automobile were worn and slick. There is no evidence of excessive speed under the conditions then existing or of careless and reckless driving of the automobile so far as concerns Rosa Lee Johnson, who did not know the rear tires were slick, of failure of William King Johnson to keep a proper lookout, or to have his automobile under control before it started skidding. There is no evidence that Rosa Lee Johnson in the exercise of due care had reasonable ground to believe that the rear tires were worn and slick. There is no evidence of a joint enterprise, or that Rosa Lee Johnson had any control over the automobile owned by her husband which he was driving. She was a guest in the car. There was no evidence to require the submission of an issue of contributory negligence in her case. York v. York, 212 N.C. 695, 194 S.E. 486. In the York case there was evidence of excessive speed.
Defendant assigns as error number 22, based on exception 23, the trial court's entire charge on the measure of damages on the second issue in Rosa Lee Johnson's case, which reads as follows:
Defendant contends that the charge was error, in that it permitted the jury to award Rosa Lee Johnson damages for loss of time, inability to perform labor and capacity to earn money, when there was no evidence as to her age, no evidence that she had ever earned any money, no evidence she had lost any time, and no evidence of her inability to perform her household duties, or to earn money. Defendant contends another vice of this part of the charge is that it did not limit her recovery for prospective loss to the present worth of such loss.
The substance of Rosa Lee Johnson's testimony as to her injuries is: Immediately prior to the injury, she had good health. She received in the collision a chest injury, and some broken ribs. She spent a night in a hospital. She was bandaged, and given medicine. She wore the bandage steady for three weeks, and off and on after the three weeks. As a result of her chest injuries, she stayed in bed three weeks in the home of a relative in Wilmington, except to go to a doctor. Her chest felt like it was a tension inside, and hurt terribly for three weeks, and now sometimes if she works with her hands, it hurts like that. As to her age, her evidence shows she is the mother of Efird Johnson, who on 5 June 1957 was five years old.
By virtue of N.C.G.S. § 52-10 a wife can sue...
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