McGinnis v. Robinson, 386
| Decision Date | 18 May 1960 |
| Docket Number | No. 386,386 |
| Court | North Carolina Supreme Court |
| Parties | Reda Cochran McGINNIS v. Catherine ROBINSON and Harold McGhee. |
Charles P. Green, Louisburg, and Frank B. Banzet, Warrenton, for defendant Catherine Robinson, appellant.
George T. Blackburn, Henderson, John H. Kerr, Jr., Warrenton, and W. Hayes Pettry, Charleston, W. Va., for plaintiff, appellee.
While in sharp conflict with evidence offered by defendant, the evidence offered by plaintiff was sufficient to support her allegations that the collision and her injuries were proximately caused by the negligence of the operator of the Mercury; and, although there was no direct evidence, the circumstantial evidence, when considered in the light most favorable to plaintiff, was, in our opinion, sufficient to support a finding that defendant was operating the Mercury when the collision occurred. See Stegall v. Sledge, 247 N.C. 718, 722, 102 S.E.2d 115; Bridges v. Graham, 246 N.C. 371, 377, 98 S.E.2d 492, and cases cited.
Defendant's motion for judgment of nonsuit was properly overruled. Since a new trial is awarded, we refrain from discussing the evidence presently before us except to the extent necessary to show the reasons for the conclusion reached. Caudle v. Southern Ry. Co., 242 N.C. 466, 88 S.E.2d 138.
Uncontroverted evidence tended to show these facts: The McGinnis car (Ford) was the last of three cars traveling east on No. 158 By-Pass. The first was a Chevrolet, owned and operated by Stanley Miller. The second was a Pontiac, bearing a Kentucky license plate, owned and operated by a Mr. Shearin. The Mercury was the second of two cars traveling west on No. 158 By-Pass. The first was a 1947 Dodge operated by Mrs. Boyd.
Evidence for plaintiff tended to show: The Mercury pulled out to its left from behind the Boyd car. Miller and Shearin, to avoid collision, pulled to the extreme right of their traffic lane. The Mercury crossed the center line, into the path of the McGinnis car. The collision occurred in McGinnis' (south) traffic lane.
Evidence for defendant tended to show: McGhee, the driver of the Mercury, pulled out to go around the Dodge and got alongside of it. McGhee observed the approaching car(s), saw he could not pass, dropped back behind the 1947 Dodge and in doing so sideswiped its left rear corner. He had gotten back on his (north) side of the road when struck by the McGinnis car.
Plaintiff also offered evidence tending to show damage to the left rear fender of the Dodge and dark green paint on the right door of the Mercury that matched the green paint on the Dodge. McGinnis, plaintiff's husband, testified: 'The Mercury was meeting me, going west, and went around another car and hit me.'
It appears from the evidence of both plaintiff and defendant that the Mercury struck the left rear of the Dodge. Plaintiff contends this contact occurred when the Mercury pulled out to its left into the lane of traffic of McGinnis, while defendant contends it occurred when McGhee dropped back from a position alongside of the Dodge into the Mercury's lane of traffic.
Defendant, by exceptions to the court's failure to charge in stated particulars, contends the court failed to declare and explain the law arising on the evidence as to all substantial features of the case as required by G.S. § 1-180, citing Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913, and similar cases. Defendant emphasizes the failure of the court to give a positive instruction to the effect that the jury should answer the second issue, 'No,' if it found the collision occurred, as defendant's evidence tended to show, on the Mercury's right side of the highway. Whether the asserted deficiency is sufficient to justify a new trial need not be decided. Defendant's exception to a portion of the charge as given is well taken and is deemed sufficiently prejudicial to require a new trial.
Defendant excepted to this portion of the...
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