Kelly v. Hunsucker
| Decision Date | 27 January 1937 |
| Docket Number | 521. |
| Citation | 189 S.E. 664,211 N.C. 153 |
| Parties | KELLY v. HUNSUCKER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Mecklenburg County; W. F. Harding Judge.
Action by Mrs. Nadine L. Kelly, administratrix of Kearns Little Kelly, deceased, against J. C. Hunsucker and another. Judgment for plaintiff, and defendants appeal.
No error.
This is an action for actionable negligence brought by plaintiff against defendants for damages.
Facts Plaintiff's intestate, a four and one-half year old child, was struck down and killed by a truck driven by the defendant Dewey Cook, the employee of the defendant J. C Hunsucker, at a street intersection in the residential district of the village of Mt. Gilead, N. C., on July 25 1933, about 1:00 p. m. in the afternoon. Dewey Cook and two other men were riding in the truck together. The middle man had a sandwich in a poke in his lap, eating his dinner. The point where plaintiff's intestate was struck is at the eastern end of a bridge, whereby the principal street of the town of Mt. Gilead (which is also a state highway) crosses over a deep railroad fill; the intersecting side street runs parallel to the railroad, south of the main street or highway, and joins but does not cross the main street at the east end of this bridge. The child started across the main street at this intersection, going from south to north, and was struck when about two and a half feet onto the highway. The bridge includes a regulation 18-foot highway, with sidewalks of 4 1/2 feet on each side, and beyond this is a solid rail or parapet about 3 1/2 feet high. The road is straight and level on both approaches to the bridge for several hundred yards, and the defendant was traveling in an easterly direction approaching the town of Mt. Gilead. A train was passing under the bridge at the same time that the defendant's truck was passing over the bridge, and train smoke was boiling up over the edge of the parapet.
Plaintiff's witness H. O. Holderfield testified that the truck entered the bridge traveling at from 35 to 40 miles an hour, and that it did not stop until it had gone some 75 feet from where the child was lying. The child was lying in the road where he was struck two feet from the south edge of the pavement, six to eight feet from the east end of the bridge. The evidence was to the effect that the truck did not turn out of its course to the left as it had room to do before it struck the child. The evidence was also to the effect that the child was in plain view of any one coming up the highway for several hundred yards from the time he stepped out of the side road and passed the parapet of the bridge until he reached the place where he was struck.
The issues submitted to the jury and the answers thereto were as follows:
"(1) Was the plaintiff's intestate killed by the negligence of the defendants? Answer: Yes.
(2) Did the plaintiff's intestate by his own negligence contribute to his injury, as alleged in the answer? Answer: No.
(3) What damage, if any, is plaintiff entitled to recover? Answer: $3,699.00."
The court below rendered judgment on the verdict. Defendants made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones will be considered in the opinion.
John M. Robinson and Hunter M. Jones, both of Charlotte, for appellants.
Pharr & Bell, of Charlotte, for appellee.
At the close of plaintiff's evidence and at the close of all the evidence, the defendants in the court below made motions for judgment as in case of nonsuit. C.S. § 567. The court below overruled these motions, and in this we can see no error.
The defendants contend that it was error in the court below to charge that the speed limit on the bridge was ten miles per hour. We cannot so hold. This charge was bottomed on chapter 140, part of section 15 of the Public Laws of 1917 (part N.C.Code 1935 [Michie] § 2616), as follows: "Upon approaching an intersecting highway, a bridge, dam, sharp curve, or deep descent, and also in traversing such intersecting highway, bridge, dam, curve, or descent, a person operating a motor vehicle shall have it under control and operate it at such speed, not to exceed ten miles an hour, having regard to the traffic then on such highway and the safety of the public." (Italics ours.)
Public Laws 1927, c. 148, is an act known as the "Uniform Act Regulating the Operation of Vehicles on Highways." We quote in part:
Section 66 of the act says: "All laws or clauses of laws in conflict with this act are hereby repealed."
It is well settled that repeals by implication are not favored, and the repugnancy between the later and the former act must be wholly irreconcilable in order to work a repeal of the former. In State v. Foster, 185 N.C. 674, 677, 116 S.E. 561, 563, speaking to the subject: '
Public Laws 1927, c. 148, did not intend to cover the whole subject; on the contrary, it says that only all laws or clauses of laws in conflict with the act are repealed.
Public Laws 1931, c. 235, § 2, reads as follows: "The State Highway Commission, or other governmental agency having control over any bridge constituting a part of the highways of the State, may, by suitable signs or markers at each end of such bridge, post the safe speed and carrying capacity for such bridge, and no motor vehicle or trailer shall be operated over such bridge at a greater speed or with a total gross weight of vehicle and load greater than posted speed or carrying capacity."
Section 3 is as follows: "All laws or parts of laws inconsistent with the provisions of this act be and the same are hereby repealed." This section is not inconsistent with the ten-mile limit.
N.C.Code 1935 (Michie) § 2598 (Pub. Laws 1917, c. 140, § 1), in part defines a "public road" as follows:
Chapter 311 of the 1935 Public Laws of North Carolina is in part as follows:
(b) Where no special hazard...
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