Miller v. Lewis & Holmes Motor Freight Corp.
| Decision Date | 07 November 1940 |
| Citation | 11 S.E.2d 300,218 N.C. 464 |
| Court | North Carolina Supreme Court |
| Parties | MILLER. v. LEWIS & HOLMES MOTOR FREIGHT CORPORATION. |
Appeal from Superior Court, Rowan County; F. D. Phillips, Judge.
Action by Minnie Fisher Miller, administratrix of the estate of George W. Miller, deceased, against the Lewis & Holmes Motor Freight Corporation to recover damages for the wrongful death of plaintiff's intestate. From a judgment as in case of nonsuit, plaintiff appeals.
Affirmed.
Robinson & Jones, of Charlotte, and Clyde E. Gooch, of Salisbury, for appellant. J. A. Myatt, of High Point, for appellee.
This is an action to recover damages for the wrongful death of plaintiff's intestate alleged to have been caused by the negligence of the defendant, wherein the pleas of contributory negligence and of the last clear chance were interposed.
The evidence when viewed most favorably to the plaintiff tends to show that the plaintiff's intestate was operating his automobile northward between Salisbury and Lexington on U. S. Highway No. 70--toward Lexington, that the automobile either became disabled or ran out of gas, and the intestate got out of it and was proceeding on foot on his right-hand side of the highway toward Lexington to get assistance; that the defendant's truck, with trailer attached, operated by its servant and agent within the scope of his authority, was on the same highway and was going in the same direction as was the intestate; thatas the truck approached within 40 or 50 feet of the intestate the horn was sounded and the intestate took one step closer to his right edge of the pavement, within 18 inches of said edge, and then suddenly turned to his left to cross said highway, and the truck was turned to its left to avoid hitting the intestate; that the front of the truck passed the intestate on his left side, and intestate ran into the right side of the trailer and was knocked down and killed; that at the time of the sounding of the horn the truck was going 60 miles per hour and at the time the truck struck the intestate it was going 40 miles per hour, and after striking the intestate the truck ran on 60 feet and stopped in the ditch on its left side of the highway.
When the plaintiff had introduced her evidence and rested her case the court sustained the defendant's demurrer to the evidence and entered a judgment as in case of nonsuit, to which the plaintiff preserved exception and appealed.
While there was ample evidence to be submitted to...
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