Mitchell v. Melts
| Decision Date | 23 January 1942 |
| Docket Number | 668. |
| Citation | 18 S.E.2d 406,220 N.C. 793 |
| Parties | MITCHELL v. MELTS et al. |
| Court | North Carolina Supreme Court |
Civil action to recover for alleged wrongful death. C.S. §§ 160, 161.
Plaintiff in her complaint, alleges: (1) That at about 7:40 P. M. on September 26, 1940, her intestate, Robert L. Mitchell, Jr. while in the act of crossing Walker Avenue in the city of Greensboro, North Carolina, from south to north, and when he had gotten nearly across, he was stricken and fatally injured by a Dodge truck, owned by defendants Lawrence Melts and Florence Melts, partners, trading as Melts Bakery, operated by defendant, S.W. Hendrix, traveling westwardly along Walker Avenue, while he, said Hendrix, agent and chauffeur of said partners trading as aforesaid, was "in the prosecution of their business and acting within the scope of his authority", as the proximate result of the negligence of said Hendrix, in that he drove said Dodge truck upon the highway, (a) carelessly and heedlessly, in willful and wanton disregard of the rights or safety of others and without due caution and circumspection and at a rate of speed and in a manner so as to endanger the life of intestate of plaintiff and other persons on the highway, in violation of law; (b) at a speed greater than was reasonable and prudent under the conditions existing at the time, in violation of the statute (Michie's Code of 1939, section 2621(288); (c) though he saw, or ought to have seen, plaintiff's intestate crossing Walker Avenue, he failed (1) to give him any warning of the approach of said truck by sounding a horn or other device, and (2) to exercise proper precaution upon observing the intestate upon the street, in violation of the statute (Michie's Code of 1939, section 2621(320); and (d) failed (1) to keep a proper lookout for intestate, and (2) to exercise reasonable care to avoid striking him after seeing him crossing the street.
Defendants deny plaintiff's allegations of negligence against them and plead negligence of intestate in bar of plaintiff's right to recover herein.
In the trial court evidence for plaintiff tends to show substantially these facts: On September 26, 1940, about 7:40 P.M., Robert L. Mitchell, Jr., intestate of plaintiff, while going from south side to north side of Walker Avenue, west of its intersection with Spring Street and the Cape Fear and Yadkin Valley Railroad, in the city of Greensboro, North Carolina, was stricken by a truck of defendant Florence Melts, trading as Melts Bakery, and operated by defendant S.W. Hendrix, as agent, and on business of said bakery traveling west on the north, or its right-hand side of Walker Avenue.
Walker Avenue runs in general direction of east and west. It is thirty two feet wide and is straight for several hundred feet.
Spring Street runs in general direction of north and south. The Cape Fear and Yadkin Valley Railroad track crosses said intersection on diagonal course from southeast corner of the intersection to northwest corner thereof. Edgeworth Street is the next street to the east, and Cedar Street is next to, west of, and parallelling Spring Street, and crossing Walker Avenue. The blocks are approximately three hundred feet. There are stop signs on Spring Street, both north and south of Walker Avenue. There is a red caution light on Walker Avenue, about the middle and over the intersection, that flashes red on Spring Street, but "it is not a stop and go sign". Whether the avenue is marked with "pedestrian aisle", the evidence fails to disclose. On the north side of the Avenue, west of the railroad right of way, and about one hundred to one hundred fifty feet therefrom, there is located the Ivory Store with a series of lights on what is known as a canopy, which give "a very bright light".
Regarding the situs of the accident: The witness Jas. P. Patten, who was sitting facing southeast in the front room of his home, which fronts north, on the southwest corner of Walker Avenue and Spring Street, testified, that "hearing brakes" he threw back the curtain and shade and "just at the split second" saw the car traveling westward hit intestate; that at that time intestate was approximately ten feet from the west rail of the railroad track, and five feet from the north curb of Walker Avenue; that though he "would not be exactly sure" he would say that the car went "approximately thirty five feet before it came to a stop"; and that the body fell, near the curb, about fifteen feet beyond the car.
On the other hand, the witness L. G. Edwards, who traveling south on Spring Street had stopped for the traffic, including the truck, to go by, testified: "I will say it is around fifty or fifty five feet west of the west curb line of Spring Street where the impact occurred", and the body was lying in the street about twelve or fifteen feet in front of the truck.
The witness, M. S. Robinson, city traffic officer, testified, that he arrived after the accident had happened and the body removed; that on the north side of the center of Walker Avenue, well on the right proceeding west, and beginning at about the west rail of the railroad, at a point approximately in line with the west curb of Spring Street, if extended across Walker Avenue, there were light parallel skid marks west for twenty feet, then a break with no such marks for about the same distance, then heavy parallel skid marks for nine feet, then at the length of a car, fifteen feet further, a little closer to the curb than the skid marks, water had leaked from the radiator, and fifteen feet further on, over toward and still closer to the curb was a blood spot where the body had come to rest; that the total distance from where the marks started to the water spot was sixty-four feet, and to the blood spot seventy-nine feet; that the right-hand skid marks, going west, were parallel to and within seven feet of the north curb; and that he found no marks of any other kind made by this truck, other than those described.
There was evidence tending to show that the right headlight of the truck was broken and that the radiator and grill work of it were pushed in, and that the right shoulder, hip and back of intestate were struck; and that "his right arm was crushed to a pulp, *** he had internal injuries *** the back of his head and right side of his temple *** hurt *** the right side of his head was crushed". He died four hours later.
Regarding question as to whether the accident occurred in a business or in a residential district: The witness Robinson, traffic officer, described the conditions in detail, in substance, as follows: (1) As to Walker Avenue: (a) On the north side and within one hundred fifty feet west of the intersection, there is no business house except the Ivory Store and a vacant store, the two having total frontage of not more than forty feet. The Ivory Store is from one hundred to one hundred fifty feet west of the railroad right of way. From it and the vacant store west it is residential, and on the same side, east of the intersection and within one hundred fifty feet therefrom there are three business places, an antique shop, a store and a garage, fronting sixty to seventy feet and from there on to Edgeworth Street about 200 feet it is vacant or residential. (b) On the south side and within one hundred fifty feet west of the intersection "there is nothing except residences *** about equally spaced"; and on same side east of the intersection, beginning thirty or forty feet from the intersection, there are the McClamroch building, a feed store with frontage of about forty feet, and a little service station, it is "solidly business property".
(2) As to Spring Street: (a) On the east side north of the intersection after passing business building which faces on the north side of Walker Avenue and runs back seventy-five feet, it is residential for the remainder of the distance of one hundred fifty feet. On same side south of the intersection there is no place of business or business establishment within one hundred fifty feet from the fifty or sixty feet frontage occupied by the Worth Distributing Company. (b) On the west side north of the intersection only about twenty feet of one hundred fifty feet adjacent thereto is used for business and the rest is residential; and on the same side south of the intersection, it is "purely residential all of the way."
Summarizing, this witness said: . Then, on re-direct examination, the witness states:
Regarding speed of truck: The witness L. G. Edwards, as above stated traveling in an automobile south along Spring Street, testified: ...
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