Moore v. Powell

• Decision Date: 10 January 1934
• Docket Number: 556.
• Citation: 172 S.E. 327,205 N.C. 636
• Parties: MOORE v. POWELL.
• Court: North Carolina Supreme Court

172 S.E. 327

205 N.C. 636

MOORE v. POWELL.

No. 556.

Supreme Court of North Carolina

January 10, 1934

Appeal from Superior Court, Rockingham County; Sink, Judge.

Action by Elsie Moore, by her next friend, John H. Moore, against E R. Powell. Judgment for plaintiff, and defendant appeals.

No error.

This is an action for actionable negligence, brought by plaintiff against defendant alleging damage. The evidence was to the effect that the plaintiff, Elsie Moore, is a small child who on the date of her injury in April, 1932, was 10 years of age. She lived in a rather thickly settled rural community about three miles west of Reidsville, N. C., on state highway No. 48. This highway was hard-surfaced for a width of eighteen feet, with ordinary dirt shoulders. The plaintiff's home is forty-six steps from the hard surface. There are three other homes facing along this road in close proximity, ranging from forty-six to fifty-three steps apart. These other homes are from twelve to fifteen steps back from the hard surface. A service station is located seventy-six steps from the last house. The highway at this point is straight. The shoulders were clear of trees bushes, or shrubbery. The view was unobstructed for two hundred yards or more in each direction from the place of the injury. The plaintiff, her mother, Mrs. John Moore, the plaintiff's three little sisters, aged 3, 5, and 9, respectively, and Mrs. Malta Moore, were standing along the shoulder of the road. They had gone there to look for wild lettuce or wild salad which was growing there. Mrs. John Moore, Mrs. Roy (Malta) Moore, and two of the little children were standing on the shoulder on the south side of the road (opposite plaintiff's home) about six or eight feet from the mail box. The plaintiff and her little sister Ruby were standing about the middle of the shoulder on the same side of the road, but about fifty feet from them in the direction of Reidsville. The defendant was driving his automobile along highway No. 48, en route from Wentworth to Reidsville. He was accompanied by another. He was driving from thirty-five to forty miles per hour. "They were in conversation with each other" --talking as though they were in close conversation. They saw the women and the children standing along beside the road. The defendant himself testified: "When I first saw these people, I was a good ways back up the road." Defendant did not blow his horn or give any signal--"might have been straddling the center." The plaintiff did not hear the car as it approached. She started across the road; "she was going kinder angling, more in the direction of Reidsville." Mrs. John Moore testified that was somewhat the same direction in which the defendant was traveling. Just before she was struck she was made aware of the approach of the automobile. She threw her hands up and screamed. The car hit her when she was "about half way between the middle of the hard-surface and the shoulder on the left." She was thrown into the air, fell on the right fender, and later dropped to the concrete. She was severely and permanently injured.

The issues submitted to the jury and their answers thereto were as follows:

"1. Was the plaintiff injured by the negligence of the defendant, as alleged? Answer: Yes.

"2. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $1,500.00."

Judgment was rendered on the verdict by the court below, and defendant appealed to the Supreme Court.

Sharp & Sharp, of Reidsville, for appellant.

Harry L. Fagge, of Leaksville, and Glidewell & Gwyn, of Reidsville, for appellee.

CLARKSON Justice.

At the close of plaintiff's evidence and at the close of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S. § 567. The court below overruled these motions, and in this we can see no error. We think there was sufficient competent evidence to be submitted to the jury.

Upon a motion as of nonsuit, all the evidence, whether offered by the plaintiff or elicited from the defendant's witnesses, is to be considered in the light most favorable to the plaintiff, and he is entitled to every reasonable intendment thereon and every reasonable inference therefrom.

The charge of the court below is not in the record, and the presumption of law is that the learned judge charged the jury correctly the law applicable to the facts.

The law of the road, C. S. § 2616, is in part: "Upon approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, and upon approaching an intersecting highway or a curve, or a corner in a highway where the operator's view is obstructed, every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling."

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