Lee v. Caveness Produce Co.

• Decision Date: 20 November 1929
• Docket Number: 253.
• Citation: 150 S.E. 363,197 N.C. 714
• Parties: LEE v. CAVENESS PRODUCE CO.
• Court: North Carolina Supreme Court

150 S.E. 363

197 N.C. 714

LEE v. CAVENESS PRODUCE CO.

No. 253.

Supreme Court of North Carolina

November 20, 1929

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

Action by Ed. Hugh Lee, administrator of Ed. Hugh Lee, Jr., against the Caveness Produce Company. From a judgment overruling a demurrer to the complaint, defendant appeals. Affirmed.

Civil action to recover damages for an alleged wrongful death caused by a collision between the car in which plaintiff's intestate was riding and the defendant's truck.

The material allegations of the complaint, so far as essential to a proper understanding of the legal question involved, may be abridged and stated as follows:

(1) That plaintiff is the duly appointed administrator of the estate of Ed. Hugh Lee, Jr., deceased; and that the defendant is a corporation engaged in transporting by trucks goods wares, and merchandise over the highways of the state.

(2) That on the night of December 6, 1928, plaintiff's intestate and a colored man by the name of Joe Williams went out in a Buick roadster to tow in a Dodge sedan automobile belonging to plaintiff's intestate.

"That they arrived at Auburn about 4:30 a.m. and secured the said Dodge car to the rear of said Buick roadster by a towing chain leaving an interval between the two cars of about 12 feet that the said Williams then got into the Buick car and plaintiff's intestate got into the Dodge Car which was to be towed, and said parties proceeded with said cars on Highway No. 10 in the direction of Smithfield, N. C.; that the said Williams, while driving in a careful and prudent manner on a stretch of road which was practically straight at a speed somewhere around 25 miles an hour, when in about 4 miles of Smithfield, suddenly saw the red rear light of defendant's truck flash into view; that at this time the car driven by said Williams was within 50 to 75 yards of the said light; that the said Williams could not instantly tell whether said truck was moving or not, but he immediately began to reduce his speed as much as was practical, taking into consideration that he was towing another car, and proceeded to turn to the left in order to avoid said light.

"That when within 25 or 35 yards of said red light the bulk of the truck suddenly came into view, extending 7 or 8 feet in the air above said red light and projecting over the hard surface road to the extent of something like 4 1/2 feet; that the said Williams thereupon continued to turn to the left and passed the end of said truck, projecting into the road, by a margin of 2 or 2 1/2 feet.

"That plaintiff's intestate, who could not see the light of the truck, the same being hidden by the Buick car, was unable to follow directly in the path of the car driven by Williams by reason of the fact that he did not have sufficient time to make the turn in the same manner and to the same degree as was done by the said Williams; that the car being guided by plaintiff's intestate crashed into the rear of defendant's said truck, and plaintiff's intestate was instantly killed."

(3) "That the point at which the agent and servant of defendant company had stopped his truck is on a slight curve and something like 200 yards on the Raleigh side from where the said Highway No. 10 makes an abrupt turn to the left and curves over a steep hill; that the said Williams was aware of the fact that he was approaching a dangerous curve on a hill and, not knowing exactly how close he was to said surve, was well over on the right side of the road at the time when he first saw the red light of defendant's truck, knowing that a towed car might be difficult to manage if he met a car speeding towards him and coming over said hill and around said curve."

(4) "That defendant's truck was loaded with produce belonging to defendant, which defendant's servant was conveying to certain points in Eastern North Carolina; that said driver had stopped the truck at a point he knew to be dangerously close to an abrupt curve coming over a steep...