Jones v. Bagwell

• Decision Date: 21 November 1934
• Docket Number: 458.
• Citation: Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170 (N.C. 1934)
• Parties: JONES v. BAGWELL.
• Court: North Carolina Supreme Court

177 S.E. 170

207 N.C. 378

JONES v. BAGWELL.

No. 458.

Supreme Court of North Carolina

November 21, 1934

Appeal from Superior Court, Wake County; Grady, Judge.

Action by W. H. H. Jones, administrator of Russell L. Jones deceased, against Walter L. Bagwell. From a judgment of nonsuit, plaintiff appeals.

Reversed.

Mere scintilla of evidence or evidence raising only suspicion conjecture, guess, surmise, or speculation is insufficient to take case to jury.

This was a civil action for actionable negligence, instituted by plaintiff, W. H. H. Jones, administrator of Russell Jones deceased, against defendant, W. L. Bagwell, to recover damages for alleged wrongful death of plaintiff's intestate, which occurred in the city of Raleigh, about midnight, December 21, 1929, or the early morning of December 22, 1929. This cause of action was first tried at second April term, 1931, of Wake superior court, before Judge G. V. Cowper, which resulted in a nonsuit. Upon appeal to the Supreme Court, the judgment of nonsuit was affirmed by opinion rendered 21st of October, 1931. 201 N.C. 831, 160 S.E. 583. The present action was instituted on April 12, 1932, and came on for trial before Judge Henry A. Grady, at second June term, 1934.

At the close of plaintiff's evidence, the court below rendered the following judgment: "This cause coming on to be heard before the Court and jury, and the plaintiff having offered evidence and rested his case, and the defendant, thereupon, having moved the Court for judgment as of non-suit; and it appearing to the Court that the cause of action declared upon in the complaint is identical with the cause of action declared in the complaint filed in Jones against Bagwell, tried at the April, 1931, term of Wake Superior Court, in which a non-suit was entered at the close of plaintiff's evidence, which judgment of non-suit, affirmed upon appeal, appearing in 201 N.C. page 831, 160 S.E. 583, and it further appearing to the Court that the evidence in the instant case is substantially the same as the evidence offered upon the trial of the first case, and it further appearing to the Court in addition thereto, and the Court being of the opinion that the plaintiff ought not to recover in any event upon the evidence offered in the instant case, the motion of defendant is allowed and it is, thereupon, considered, ordered, and adjudged that the plaintiff be non-suited and that this action be dismissed at the cost of the plaintiff to be taxed by the Clerk of the Superior Court."

The plaintiff's exceptions and assignments of error were as follows:

"For that the Court erred in granting defendant's motion of non-suit, at the close of plaintiff's evidence."

For that the Court erred in rendering and signing judgment dismissing the action as of non-suit, as set out in the record."

The material and necessary facts will be set forth in the opinion.

J. L. Emanuel, Bart M. Gatling, and Sam J. Morris, all of Raleigh, for appellant.

Douglass & Douglass and Simms & Simms, all of Raleigh, for appellee.

CLARKSON Justice.

At the close of plaintiff's evidence, the defendant made a motion for judgment as in case of nonsuit. C. S. § 567. The court below sustained the motion, and in this we think there was error.

Upon motion as of nonsuit, all the evidence is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom.

It is well settled that the evidence must be more than a scintilla to be submitted to the jury. If it only raises a suspicion, a conjecture, a guess, a surmise, a speculation, it is not sufficient. Denny v. Snow, 199 N.C. 773, 774, 155 S.E. 874.

N.C. Code of 1931 (Michie), § 2618, in part is as follows:

"No person shall operate a motor vehicle upon the public highways of this State recklessly, or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the property or the life or limb of any person: Provided, That no person shall operate a motor vehicle on any public highway, road or street of this State at a rate of speed in excess of:"

(A) Twenty miles per hour in the built-up residential section of any village, town or city: Provided, that on any highway, road or street entering any city, town or village the built-up residential section shall be construed to begin at the first point, between which point and a point one thousand feet away on said street, road or highway there are as many as eight residences."

Part of (F) is as follows: "The governing body of every incorporated city or town shall have authority by ordinance to make reasonable street crossing regulations." Public Laws of 1925, c. 272.

Section 2617(a) in part is as follows: "This section shall not interfere with the regulations prescribed by towns and cities." Public Laws of 1927, c. 120. See section 2621 (46).

Section 5 of the Traffic Ordinances of the city of Raleigh is as follows: "It shall be the duty of every person driving or operating any vehicle to obey instantly any directions that may be given by a traffic officer; to slow down upon approaching each street intersection or pedestrian in the street so as to pass such intersection or pedestrian at a speed not exceeding ten miles per hour; and in the case of a motor vehicle or street car, to sound the horn or bell of such vehicle or car, in warning upon the approaching of Hillsboro Street and Glenwood Avenue, to slow such vehicle or street car to five miles an hour to sound horn or bell." (Italics ours.)

In Hendrix v. R. R., 198 N.C. 142, 144, 150 S.E. 873, is the following: "It is well settled in this jurisdiction that the violation of a town or city ordinance or state statute is negligence per se, but the violation must be the proximate cause of the injury. Ordinarily this is a question for the jury, if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine." There must be a causal connection between the violation of the statute and the injury inflicted. Burke v. Coach Co., 198 N.C. 8, 13, 150 S.E. 636.

Was there any or sufficient evidence to be submitted to the jury that defendant was exceeding the speed limit contrary to the law of the road? We think so. The evidence on the part of plaintiff was not direct, but circumstantial, yet under well-settled law he was entitled to every reasonable inference to be drawn from the evidence.

The testimony of Neill Hester was to the effect that he was driving a model-T Ford sedan, on Hillsboro street, traveling east, towards the capitol, approximately one-half block away-some 200 feet-running 15 to 20 miles per hour.

He further testified, in part: "The first indication I had of this accident was when I noticed two headlights approaching me approximately half a block away, and there was a jerk to this side; that would be toward my left, or toward the east side. No, it would be to the south side of Hillsboro Street; but when I noticed the lights going out I was not impressed even with that, that an accident had occurred until I had traveled almost the length of the block going east, when I noticed a form, appearing to be a human form, lying in the middle of the car track. Then I saw somebody had been hit. * * * I saw the person, when I got there, was apparently dead or unconscious. I did not examine his pulse to see if he were dead or not. There was a trickle of blood from under his head about five or six inches long. About that time, I noticed a car up the block, west from where the form lay, and I started up there to see if that was the car that figured in the accident and got about one-third of the distance when I met a man walking towards me or towards the form, whom I later learned was Mr. Bagwell. I did not know him personally then. * * * I kept on going until I came to this car and went around to the front end of it and saw that the right headlight was mashed in and bent back and that satisfied me. * * * From the time I saw the lights go out on Mr. Bagwell's car, until I parked in front of the A. & P. Store, I did not see any cars pass going either in an easterly or westerly direction. * * * The car that struck this body was travelling west. To the best of my recollection, the head was lying west and the feet east. It was almost in a straight line between the car tracks. In other words, the body was lying on a north and south line in the north car tracks. * * * I presume that when the lights went out, is when the body fell; that was the conclusion I arrived at, but I don't know. * * * I should say that a person with ordinary vision, driving an automobile in a westerly direction at that point, could see everything that was at that intersection. * * * I was across the bridge when the lights went out on Mr. Bagwell's car-I'd say 200 ft. or more away."

M. F. Arnold testified, in part: "I just saw the spot of blood and the parked car. The spot of blood was right in this track (indicating on map), where this track goes to the barn. It was on the north side of Hillsboro. * * * I examined the place carefully. I saw Mr. Bagwell's car and stepped the distance from the place I found the blood stains, to his car. As I remember, it was 71 steps. * * * The headlights were broken on the car. * * * The right front main headlight was bent back or around." He further testified that, on the former trial, Bagwell told him plaintiff's intestate "jumped out in front of his car and that he could not avoid hitting him."

E. M. Waring testified, in part:

"I was standing in front of the Manhatten Lunch Room on the corner of

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