Loving v. Whitton

Decision Date15 December 1954
Docket NumberNo. 524,524
Citation84 S.E.2d 919,241 N.C. 273
PartiesMrs. Freda M. LOVING v. Earle WHITTON and Richard D. Gibson.
CourtNorth Carolina Supreme Court

Francis H. Fairley and Robinson & Jones, Charlotte, for defendant-appellant Richard D. Gibson.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for plaintiff-appellee.

Helms & Mulliss, Wm. H. Bobbitt, Jr., and Cochran, McCleneghan & Miller, Charlotte, for defendant-appellee Earle Whitton.

BARNHILL, Chief Justice.

On the question raised by the demurrer ore tenus interposed in this Court by the defendant Gibson, the essential determinative facts alleged by plaintiff may be summarized without quoting verbatim the several allegations of negligence contained in the complaint. These facts, for the purpose of decision of this question, are admitted by the demurrer and must be treated as facts agreed.

She alleges that (1) East Seventh Street is an arterial or through street, (2) Laurel Avenue is a servient highway, and (3) Whitton, traveling on Laurel Avenue, and Gibson, going east on East Seventh Street, approached the intersection of the two streets at approximately the same time.

Then, as to Whitton she alleges that he failed to stop his vehicle 'at the stop sign which had been erected at said intersection, and on the contrary and in violation of the traffic ordinances of the City of Charlotte, he proceeded to drive said Cadillac automobile into said intersection and directly in front of and into the path of the DeSoto automobile driven by the defendant Gibson,' and that he 'drove the said Cadillac automobile in a careless and negligent manner, in that he failed to maintain a proper lookout, failed to keep said Cadillac automobile under proper control, failed to yield the right-of-way to the defendant Gibson who was approaching said intersection at approximately the same time * * * and he carelessly and negligently operated said Cadillac automobile at a speed that was greater than was reasonable and prudent under the conditions then and there existing,' and 'carelessly and negligently drove said Cadillac automobile in front of and into the path of the automobile driven by the defendant Gibson' 'so that there occurred a collision between said two automobiles.'

She alleges that defendant Gibson 'drove his said DeSoto automobile in a careless and reckless manner, in that he failed to maintain a proper lookout, failed to keep said DeSoto automobile under proper control, failed to give any notice or warning of his approach to said intersection, and he drove said DeSoto automobile at a speed that was greater than was reasonable and prudent under the conditions then and there existing and at a speed in excess of 35 miles per hour in a residential district, and he carelessly and negligently drove said DeSoto automobile into the right side of the automobile driven by the defendant Whitton with great force and momentum.'

She alleges further that the alleged negligence of the two defendants concurred in causing the collision of the two vehicles as the result of which she sustained certain personal injuries.

These allegations bring this case within the line of decisions represented by Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, and Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361. See also Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Smith v. Sink, 211 N.C. 725, 192 S.E. 108, and Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197.

'Proximate cause is a prerequisite of liability for negligence and foreseeability is an essential element of proximate cause. Hence, in the final analysis, reasonable...

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21 cases
  • Hayes v. City of Wilmington
    • United States
    • North Carolina Supreme Court
    • February 29, 1956
    ...is in accord with recent decisions of this Court. Potter v. Frosty Morn Meats, Inc., 242 N.C. 67, 86 S.E.2d 780; Loving v. Whitton, 241 N.C. 273, 84 S.E. 2d 919; Troxler v. Central Motor Lines, 240 N.C. 420, 82 S.E.2d 342, and cases cited; McLaney v. Anchor Motor Freight, Inc., 236 N.C. 714......
  • Greene v. Charlotte Chemical Laboratories, Inc., 235
    • United States
    • North Carolina Supreme Court
    • May 24, 1961
    ...may preclude the dismissal of the other or others if plaintiff fails to make out a prima facie case as to them. See Loving v. Whitton, 241 N.C. 273, 276, 84 S.E.2d 919. That portion of the prayer for relief asking for contribution was properly stricken together with paragraph 10 of the Seve......
  • Streater v. Marks, 522
    • United States
    • North Carolina Supreme Court
    • April 13, 1966
    ...the sole proximate cause of the collision and, therefore, no cause of action was alleged against the other defendant. In Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919, the plaintiff alleged that one defendant, proceeding on a servient street, in violation of the stop sign, drove into the i......
  • Potter v. Frosty Morn Meats
    • United States
    • North Carolina Supreme Court
    • April 13, 1955
    ...237 N.C. 313, 74 S.E.2d 706, where, on similar facts alleged, the demurrer was sustained. Also in the recent case of Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919, 922, a similar result was reached. There it was alleged that Whitton drove his automobile from a side street into an arterial ......
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