Lewis v. Hunter
| Decision Date | 24 November 1937 |
| Docket Number | 389. |
| Citation | 193 S.E. 814,212 N.C. 504 |
| Parties | LEWIS v. HUNTER et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Lenoir County; N. A. Sinclair, Judge.
Civil action by O. G. Lewis, administrator of Sadie Meade Lewis against Kelly Hunter, Preston Spear, and the city of Kinston. From a judgment for the plaintiff, the defendants appeal.
On defendant Hunter's appeal, affirmed; on defendant Spear's appeal, affirmed; on defendant city's appeal reversed.
In action for death of pedestrian who was struck by one motorist and then run over by another motorist, submission of issue as to whether pedestrian's death was caused by motorists' negligence, and if so by which motorist, was not error as against contention that negligence of each motorist should have been submitted in separate issues.
This was a civil action to recover damages for the alleged wrongful death of the plaintiff's intestate.
There was evidence tending to show that on the evening of April 10 1936, about 9 o'clock, the plaintiff, O. G. Lewis, and his intestate, Sadie Meade Lewis, who was his wife, were walking in the City of Kinston, east on Washington street, and attempted to cross Queen street at its intersection with Washington street, that they proceeded halfway across Queen street and were standing near the center of Queen street to let certain traffic pass, that while they were so standing the automobile driven by the defendant Hunter approached them from the north on Queen street, traveling south at a negligent rate of speed, and, when the automobile had come close to the plaintiff and his wife, the driver thereof, defendant Hunter, cut it across his left of the center of Queen street and struck the plaintiff's intestate, and carried her on the fender of said automobile for from 50 to 70 feet, when the intestate rolled from the fender of the automobile to the street, near the center thereof; that while the plaintiff's intestate was lying prostrate and unconscious near the center of Queen street, a Terraplane automobile, owned by the defendant city and driven by the defendant Spear, approached said intestate from the north, driving south on Queen street, and ran over and dragged the intestate; that, as soon as the intestate had been extricated from the Terraplane automobile, she was taken immediately in an ambulance to the hospital, where she died in about 5 minutes after arrival from wounds and shock that she had received as a result of the impacts with the two automobiles.
There was evidence tending to show that the intestate stepped or jumped in front of the automobile driven by Hunter, instead of the automobile being turned and driven over her, and that the automobile was being driven in a careful and lawful rate of speed. There was also evidence tending to show that the Terraplane was being driven in a careful and lawful manner, and that two or three minues elapsed between the time the intestate was struck by the Hunter automobile and the time she was struck by the city automobile, and that the plaintiff left the intestate on the street during this interval.
All of the evidence tended to show that the Terraplane automobile was equipped with a radio and was used solely by the police department of the City of Kinston, in preventing and detecting crime, making arrests, and hauling those arrested to places of detention; that the defendant Spear was employed by the hour by the city to keep the radio in repair, and that the automobile was at the time it ran over the intestate being returned from the shop of Spear to the city's garage after having been repaired by Spear in said shop. The following verdict was returned by the jury, to wit:
"1. Was the death of plaintiff's intestate caused by the negligence of the defendants, or any of them, as alleged in the complaint, and if so, by which defendant or defendants? Answer: Yes, all three.
2. If so, did the plaintiff's intestate, Sadie Meade Lewis, contribute to her own injury and death, as alleged in the answer of the defendant, Kelly Hunter? Answer: No.
3. If so, did O. G. Lewis, by his own negligence, contribute to and cause the injury and death of plaintiff's intestate, as alleged in the answer of the defendants, Preston Spear and the City of Kinston? Answer: No.
4. Notwithstanding the contributory negligence of plaintiff, O. G. Lewis, if any, did the defendants, Preston Spear and the City of Kinston, have the last clear chance to avoid the injury and death of plaintiff's intestate? Answer: Yes.
5. What amount of damages, if any, is the plaintiff entitled to recover of the defendants, or any of them? $6,000.00."
From judgment that the plaintiff have and recover of the defendants, and each of them, jointly and severally, $6,000, the defendants appealed, assigning errors.
J. A. Jones and J. G. Dawson, both of Kinston, for appellant Kelly Hunter.
Charles F. Rouse, Sutton & Greene, and Jones & Brassfield, all of Raleigh, for appellant City of Kinston.
Charles F. Rouse and Sutton & Greene, all of Kinston, for appellant Preston Spear.
R. A. Whitaker and A. W. Cowper, both of Kinston, and Ehringhaus, Royall, Gosney & Smith, of Raleigh, for appellee.
Appeal of defendant Kelly Hunter: The appellant assigns as error the refusal of the court to allow his motion for a judgment as in case of nonsuit properly lodged under the provisions of C.S. § 567. This assignment cannot be sustained. There was evidence tending to show that the intestate was injured and killed by the negligent operation of his automobile by the defendant Hunter; there was also evidence tending to show that the intestate was guilty of contributory negligence. This evidence was properly submitted to the jury under the issues of negligence and contributory negligence.
The appellant also assigns as error the submission of issues upon which the case was tried. This assignment cannot be sustained, since the issues afforded full opportunity to the appellant to present his theory of the case, namely, the absence of negligence on his part, and the presence of contributory negligence on the part of the...
To continue reading
Request your trial