Maddox v. Brown
| Decision Date | 02 May 1951 |
| Docket Number | No. 523,523 |
| Citation | 233 N.C. 519,64 S.E.2d 864 |
| Parties | MADDOX, v. BROWN et al. |
| Court | North Carolina Supreme Court |
Smathers & Carpenter, R. Hoyle Smathers and Lewis B. Carpenter, all of Charlotte, for plaintiff, appellant.
Robinson & Jones, Charlotte, for defendants, appellees.
This case was here at the Spring Term, 1950, on appeal by the defendants from judgment on a verdict in favor of the plaintiff. The decision, sustaining the action of the lower court in submitting the case to the jury and in upholding the verdict and judgment below, is reported in 232 N.C. 244, 59 S.E.2d 791. Thereafter, upon rehearing, this Court re-affirmed the action of the lower court in holding that the evidence was sufficient to overcome the defendants' motion for nonsuit, but a new trial was granted for errors committed by the trial court in charging the jury. The opinion on rehearing is reported in 232 N.C. 542, 61 S.E.2d 613.
The case comes back this time on appeal of the plaintiff from judgment as of nonsuit on motion of the defendants at the close of the plaintiff's evidence upon the retrial below.
It is settled law that a decision of this Court on a former appeal constitutes the law of the case, both in subsequent proceedings in the trial court and on subsequent appeal. Pinnix v. Griffin, 221 N.C. 348, 20 S.E.2d 366, 141 A.L.R. 1164; McGraw v. Southern R. Co., 209 N.C. 432, 184 S.E. 31; Robinson v. McAlhaney, 216 N.C. 674, 6 S.E.2d 517.
Where the question of nonsuit has been decided in favor of the plaintiff on a prior appeal, it suffices for the plaintiff on retrial to offer substantially the same evidence. Clark v. Sweaney, 176 N.C. 529, 97 S.E. 474; McGraw v. Southern R.Co., supra, 209 N.C. 432, 184 S.E. 31. A motion to nonsuit may be resolved against plaintiff only when the evidence on retrial varies in a material aspect from that offered on the first trial. George v. Winston-Salem Southbound R. Co., 217 N.C. 684, 9 S.E.2d 373; McCall v. Textile Industrial Institute, 189 N.C. 775, 128 S.E. 349.
Therefore, it would seem that decision on the instant appeal lies in a narrow compass. It turns on the question of whether the evidence on the retrial was substantially the same as, or materially different from, that adduced at the previous trial. Clark v. Sweaney, supra, 176 N.C. 529, 97 S.E. 474; George v. Winston-Salem Southbound R. Co., supra, 217 N.C. 684, 9 S.E.2d 373.
We have studied and analyzed the records on both appeals. The physical facts showing location, highway dimensions and markings, weather conditions, and other background facts, with the exception of a few immaterial details, were shown at each trial to have been substantially the same. These background facts are set out in the two former opinions, 232 N.C. 244, 59 S.E.2d 791 and 232 N.C. 542, 61 S.E.2d 613, and will not be restated, except in broad outline: The collision occurred on the morning of 9 July, 1947, on Wilkinson Boulevard (U. S. Highway No. 29) between Charlotte and Gastonia, about one hundred fifty feet east of the Berryhill Crossroads intersection. Wilkinson Boulevard is a four-lane highway. The center of the highway was marked with a double line. The north half was marked with a line dividing it into two traffic lanes. The south half was marked with a single line dividing it into two traffic lanes. The highway runs generally east and west. The north half was used for traffic going west toward Gastonia; the south half was used for traffic moving east toward Charlotte. The pavement is about forty-two feet wide. The sun was shining, and the surface of the roadway was dry. Both vehicles,--the motorcycle ridden by the intestate and the bus driven by the defendant Brown,--were traveling westerly toward Gastonia.
At a point about six hundred fifty feet east of the Berryhill Crossroads intersection, on the Charlotte side thereof, both vehicles were observed on the inside passing lane, with the motorcycle a short disstance ahead of the bus. From there on, the vehicles traveled a further distance of about five hundred feet, with the bus driver signaling by horn his desire to pass the motorcycle. In the passing movement, which occurred about one hundred fifty feet east of the Berryhill Crossroads intersection, the two vehicles collided, resulting in the death of plaintiff's intestate.
Decision on this appeal, as on the former one, hinges on the evidence showing the movements of the two vehicles during the last four or five hundred feet traveled,--from the time the bus driver began blowing to pass the motorcycle until in attempting to do so the two vehicles collided. On this crucial phase of the case, we have examined and compared the evidence offered by the plaintiff at each trial. The comparison discloses variances, discrepancies, omissions and some additions, in minor details. But in basic trend and content there is no material difference in the evidence adduced. It is substantially the same.
On both trials the plaintiff relied in large part on the testimony of two eyewitnesses,--George Wallace and Mrs. John LeGette. The defendants point to and rely upon variances in the testimony of these two witnesses as supporting the lower court in nonsuiting the case upon the retrial.
The witness George Wallace was in the Richfield service station side of the highway, drinking a soft drink, when the two vehicles approached from the East. At both trials he testified in effect that he heard a horn blowing like it 'was hung up'. He 'hurried and got done drinking his drink' and went out front 'to see what was the matter.' When he got out in front of the station he looked toward Charlotte and saw a motorcycle coming, with the bus about thirty-five feet behind; that both vehicles were about five hundred feet away when he first saw them. At the first trial, the witness said the motorcycle was in 'the lane next to the center of the highway,--the lane right in the center of the highway.' This time he said the motorcycle, when he first saw it, was in the middle of the highway, between the double lines marking the center. On the first trial, he said the man on the motorcycle 'pulled back in front of the bus * * *; that when the motorcycle and the bus come together the man slid off on his face * * * The bus never even touched him.' On cross-examination before, he said 'the motorcycle did cut into the side of the bus * * * and I first said that the motorcycle cut into the left door, and I corrected that to say the right door.' This time, he sai...
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