Matthews v. Cheatham

• Decision Date: 04 November 1936
• Docket Number: 91.
• Citation: Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87 (N.C. 1936)
• Parties: MATTHEWS v. CHEATHAM et al.
• Court: North Carolina Supreme Court

188 S.E. 87

210 N.C. 592

MATTHEWS v. CHEATHAM et al.

No. 91.

Supreme Court of North Carolina

November 4, 1936

Appeal from Superior Court, Edgecombe County; W. C. Harris, Judge.

Action by L. B. Matthews against J. T. Cheatham and another. From a judgment for plaintiff, defendants appeal.

No error.

CONNOR J., dissenting.

This is an action for actionable negligence brought by plaintiff against defendants to recover damages. The complaint in part is as follows: " That on November 25, 1933, the plaintiff was driving his Chevrolet automobile through the City of Wilson, County of Wilson, State of North Carolina, in a southerly direction and on Tarboro Street, and in a lawful manner, and, as he progressed across the intersection of Tarboro and Vance Streets, a Ford automobile, driven in a negligent, wrongful, tortious and reckless manner, and at an unlawful rate of speed by Mary Johns Cheatham, one of the defendants herein, ran onto and against the right side of the automobile driven by the plaintiff, wrecking said plaintiff's automobile and throwing him violently therefrom, turning said automobile of the plaintiff over onto and against him, the said plaintiff, in such a manner as to break his pelvis bone in two places, crushing his kidney, and other parts of his body, inflicting serious bodily damage on said plaintiff and thereby permanently injuring him and causing him great agony in body and mind and great suffering loss of labor, loss of property, hospital, nursing, and doctor's bills, to his great hurt and damage, through no fault of his. That the defendant, Mary Johns Cheatham, is now and was at the time set out in this complaint the wife of the defendant, J. T. Cheatham, and they are now and were at said time living together as man and wife, and the said J. T. Cheatham, at the time set out in the complaint and for sometime prior thereto maintained the Ford automobile, which on said occasion was being operated by the defendant, Mary Johns Cheatham for the use, pleasure and convenience of himself and members of his family, including his wife, the said Mary Johns Cheatham, and that on said occasion the said Ford automobile was being operated by the said Mary Johns Cheatham, with the actual or implied knowledge, consent and acquiescence of the defendant, J. T. Cheatham. That the negligence of the defendants as hereinbefore set out was the direct, sole and proximate cause of the damage hereinbefore set out suffered by the plaintiff."

The defendant J. T. Cheatham denied the material allegations of the complaint and says that he did not, as plaintiff alleged, maintain the car either for his own or his family use, and further sets up the plea of contributory negligence.

The defendant Mary Johns Cheatham denied the material allegations of the complaint and set up the plea of contributory negligence, and further "that as a direct and proximate result of the aforesaid negligence of the plaintiff, this defendant sustained severe bruises and great shock, both mental and physical, requiring the services of physicians, all to her hurt and damage in the sum of $2500.00. This defendant pleads the aforesaid negligence of plaintiff in bar of recovery herein and as a basis for her counter-claim. * * * That plaintiff recover nothing; that she recover of plaintiff the sum of $2500.00."

The issues submitted to the jury and their answers thereto were as follows: "1. Was the plaintiff injured by the negligence of the defendant, Mary Johns Cheatham, as alleged in the complaint? Ans. Yes.

2. If so, did the plaintiff by his own negligence contribute to or cause said injury? Ans: No.

3. Was the Ford automobile operated by Mary Johns Cheatham, owned, maintained or kept by the defendant, J. T. Cheatham, for the general use, pleasure or convenience of his family? Ans: Yes.

4. What sum, if any, is plaintiff entitled to recover, as damage? Ans: $5200.00.

5. Was the defendant, Mary Johns Cheatham, injured by the negligence of the plaintiff as alleged in the answer? Ans: -------.

6. What sum, if any, is the defendant Mary Johns Cheatham, entitled to recover, as damages? Ans: -------."

The judgment of the court below is as follows: "Present: Honorable W. C. Harris, Judge. This cause coming on for trial and being heard before the Honorable W. C. Harris, Judge, and a jury, at March 30th Term, 1936, of the Superior Court of Edgecombe County, and the jury having answered the issues submitted in favor of the plaintiff as appears in the record: Now, Therefore, upon motion of Mr. B. H. Thomas and Messrs. Gilliam & Bond, Attorneys for plaintiff, it is adjudged, ordered and decreed that the plaintiff have and recover of the defendants, J. T. Cheatham and Mary Johns Cheatham, the sum of $5,200.00, and the costs of this action to be taxed by the Clerk. W. C. Harris, Judge."

The defendants made numerous exceptions and assignments of error, and appealed to the Supreme Court. The material ones will be set forth in the opinion.

Finch, Rand & Finch, of Wilson, and Spruill & Spruill, of Rocky Mount, for appellants.

B. H. Thomas, of Rocky Mount, and Gilliam & Bond, of Tarboro, for appellee.

CLARKSON Justice.

The material exceptions and assignments of error made by defendants, are as follows: "For that the Court erred in refusing to grant defendants' motion for judgment as of nonsuit at the close of plaintiff's evidence. For that the Court erred in refusing to grant defendants' motion for judgment as of nonsuit at the close of all the evidence. For that the Court erred in refusing to grant defendants' motion to charge the jury as follows: 'I charge you, gentlemen of the jury, that, if you find the facts to be as testified to by all of the witnesses, it will be your duty to answer the third issue No."' We do not think the exceptions and assignments of error can be sustained.

Upon a motion as of nonsuit, all the evidence upon the whole record tending to support plaintiff's cause of action is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom.

The jury accepted plaintiff's evidence to be true. The evidence sustained the allegations of the complaint (1st) as to the collision: The plaintiff lived in Rocky Mount, and on the morning of November 25, 1933, he was going to a farm and had to pass through Wilson, N.C. He was driving a Chevrolet automobile with a trailer. He was on Tarboro street, on the right side, and came to Vance street, and was attempting to cross the intersection when he was injured. When reaching the intersection, he had his car under control to stop, if necessary, and had slowed down to 10 miles an hour. He saw a car coming east (in a southeasterly direction) on Vance street. The car was twice the width of the intersection away when he entered the intersection. He went across the street and just before he cleared it the car driven by the feme defendant hit the right-hand door of his car and turned it over. The blow knocked him out of the car. In his opinion she was driving 40 miles an hour. Tarboro street is 37 feet wide and goes east and west, and Vance street is 30 feet wide and goes north and south. As he entered the intersection, the feme defendant was at the very least 60 to 70 feet away. She did not reduce her speed, or apply her brakes or make any attempt to stop. There was nothing to obstruct her view the entire...