De Laney v. Henderson-Gilmer Co.

• Decision Date: 08 December 1926
• Docket Number: 453.
• Citation: 135 S.E. 791,192 N.C. 647
• Parties: De LANEY v. HENDERSON-GILMER CO.
• Court: North Carolina Supreme Court

135 S.E. 791

192 N.C. 647

De LANEY v. HENDERSON-GILMER CO.

No. 453.

Supreme Court of North Carolina

December 8, 1926

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by J. L. De Laney against the Henderson-Gilmer Company. Judgment for plaintiff, and defendant appeals. No error.

John M Robinson, of Charlotte, for appellant.

James A. Lockhart, of Charlotte, for appellee.

CLARKSON J.

This is a civil action for actionable negligence, brought by plaintiff against the defendant.

Martha De Laney, a schoolgirl in the tenth grade, about 14 years of age, on the morning of November 26, 1924, about 9 o'clock, with the permission of her father, J. L. De Laney, was driving to school in his Essex car, with a companion, Martha Dulin. She had no city license, she had been driving a car about one year to a year and a half, with her father's permission, around the city. She was coming south down Cecil street, between Seventh and Elizabeth avenue. Her description of the occurrence is as follows:

"When I came to Fifth street, I was traveling between 8 and 10 miles an hour. I was watching the road. I did not see the defendant's truck until I had gotten almost in the mouth of Fifth street; it was coming down Fifth street going west. Fifth street runs down grade a good deal after it enters Cecil. I would say the truck was running between 15 and 20 miles and hour. I was on the right side of the street, about four feet from the curb. Before I got to the corner, I blew the horn four times, and when I got there the truck was coming down. It did not stop, but kept on coming, and I saw if I stopped he would hit me on the side and knock me down an embankment at the back of the school, so I speeded up to get past the car on the right before it struck me, but it struck me anyway. I was curving to the right. The car swerved to the right on my side, and I tried to make the curve with the truck. Fifth street stops at Cecil. There was a high embankment on the East side of Cecil street, and you can't see a car coming down Fifth street for that embankment. On the far side of Cecil there is a bank dropping about 10 feet from the street. The truck struck me on the front fender and knocked me up on the curbing, and I hit the telephone post. It tore up the car in which I was riding, turned it over on the side after it struck the post. The truck struck the left front fender of my car on the side near the front. The car was taken to the Motor Company. I went to the hospital. His car was coming down Fifth street, and I turned to the left at the intersection."

This testimony was corroborated by Martha Dulin, who was riding in the car with her.

The defendant, in its answer, denied negligence and set up the plea of contributory negligence. The defendant introduced no evidence. The issues submitted to the jury were the usual ones in such cases-negligence, contributory negligence, and damages. The jury found the defendant negligent, the plaintiff not guilty of contributory negligence, and assessed damages.

The first material assignment of error by defendant is to the following:

"Q. Do you know whether she (plaintiff's daughter) is a careful or careless driver?"

This assignment of error must be considered in the light of what had occurred before in the trial, on cross-examination of J. L. De Laney by the defendant to impeach and discredit his testimony and lessen its value before the jury. He was asked certain questions, and his answers were:

"I knew that was a violation of the law. I am an attorney. I have been to the Legislature, a state Senator. I have also been recorder pro tem. I have tried people down there for violating traffic ordinances, as judge, and I have punished them, and I knew that this was a violation of the law to let my daughter drive alone on the streets when she was not but 14 years old."

On redirect examination, the testimony complained of was brought out. This testimony was not offered as substantive, but it was in answer to the impeachment of the witness, De Laney, for allowing his daughter under 16 years of age to operate a motor vehicle, with his knowledge and consent, contrary to the traffic law. No request by defendant was prayed to limit its scope. It was collateral to the main issue. In fact, the evidence of the two witnesses as to how the collision occurred was not contradicted by defendant.

The decisions cited by defendant are not applicable here, conceding, but not deciding, we do not think it reversible or prejudicial error.

Complaint is also made by defendant that the court, in setting forth the contentions of plaintiff, gave point to the error, and this testimony was referred to:

"She was young in years, under the age limit required by law, yet she knew how to drive and was an experienced and careful driver."

It does not appear that exception was made at the time. It is well established by the decisions of this court that, if no objection is made at the time, it is waived. State v. Sinodis, 189 N.C. page 565, 127 S.E. 601.

It is further contended that the court below, in the charge upon negligence, violated the prudent man rule and cites this excerpt from the charge:

"There are a number of definitions as to negligence. Probably as easy and simple a definition as any I can think of at the moment is that where a man does a thing he ought not to do or leaves undone a thing he ought to do, which doing or leaving undone brings about injury to another. That is one definition, and, as far as I know, about as simple to apply to this case as any I can think of."

In Lea v. Utilities Co., 175 N.C. at page 463, 95 S.E. 895, the court said:

"In order to establish actionable negligence, the plaintiff is required to show by the greater weight of the testimony, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed, proper care being that degree of care which a prudent man should use under like circumstances and charged with a like duty; and second, that such negligent breach of duty was the proximate cause of the injury-a cause that produced the result in continuous sequence and without which it could not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was

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