Murray v. Wyatt

• Decision Date: 12 December 1956
• Docket Number: No. 470,470
• Citation: 95 S.E.2d 541,245 N.C. 123
• Parties: Fred F. MURRAY, Administrator of the Estate of James C. Murray, deceased, v. E. W. WYATT, Sr., and E. W. Wyatt, Jr. and Joe Boyle.
• Court: North Carolina Supreme Court

Page 541

95 S.E.2d 541

245 N.C. 123

Fred F. MURRAY, Administrator of the Estate of James C Murray, deceased, v. E. W. WYATT, Sr., and E. W. Wyatt, Jr. and Joe Boyle.

No. 470

Supreme Court of North Carolina.

Dec. 12, 1956

Smith, Leach, Anderson & Dorsett, Raleigh, for defendants, appellants.

Thomas A. Banks and William T. Hatch, Raleigh, for plaintiff, appellee.

BOBBITT, Justice.

Defendants offered evidence. Hence, the only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. § 1-183; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209.

In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiff or by defendants, must be considered in the light most favorable to plaintiff. Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727. Under the rule stated, there was no error in submitting the case to the jury.

There was plenary evidence that Murray (with his back towards Boyle), and the Jones truck, were standing at the north end of the 'refuse pile' directly in the path of the Boyle truck while it backed downgrade and pinned Murray between the two trucks. Moreover, the evidence, including Boyle's testimony, tended to show that, while backing, he could not see what was behind him; and that Boyle gave no signal by horn or otherwise before he started to back or while backing.

In view of the evidence that both Murray and the Boyle truck were in fact directly behind him, it was for the jury, upon all the evidence, to say whether Boyle failed to use due care in backing his truck without first exercising due care to ascertain whether he could do so without striking Murray or the Jones truck. Adams v. Beaty Service Co., 237 N.C. 136, 74 S.E.2d 332. There is little difference between backing a truck when you cannot see what is behind you and in driving forward when blindfolded.

Conceding, as contended by defendants, that the Boyle truck moved at 'a normal speed for backing up,' there was evidence of a special hazard. See: G.S. § 20-141(a, c); Baker v. Perrott, 228 N.C. 558, 46 S.E.2d 461. Any speed may be unlawful and excessive if the operator of a motor vehicle knows or by the exercise of due care should reasonably anticipate that a person or vehicle is standing in his line of travel.

As indicated above, defendants, by way of new matter constituting a defense, G.S. § 1-135, subd. 2, and by way of contributory negligence, G.S. § 1-139, alleged that Boyle backed his truck as directed by Murray. The burden of proving such affirmative defense was on defendants. MacClure v. Accident & Casualty Ins. Co., 229 N.C. 305, 49 S.E.2d 742. The same rule applied to defendants' plea of contributory negligence. Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326, and cases cited. It is noted that these allegations were expressly denied in plaintiff's reply thereto.

Defendants' said allegations, and defendants' evidence in support thereof, constituted the backbone of their defense. The jury was at liberty to reject them and did so. Certainly, the undisputed evidence here, taken in the light most favorable to plaintiff, did not establish plaintiff's contributory negligence so clearly that no other reasonable inference or conclusion could be drawn therefrom. Dennis v. City of Albemarle, 243 N.C. 221, 90 S.E.2d 532.

Nor did the court err in refusing to give defendants' requested peremptory instruction, to the effect that they would answer the contributory negligence issue, 'Yes,' if they found the facts to be as all the evidence tended to show. The court did instruct the jury that if they found from the evidence and by its greater weight, first, that Murray was negligent 'in that he failed to see what he should have seen, that he failed to keep a proper lookout and failed to exercise proper care for his own safety or that he signaled the driver to back in there and then stepped into the way of it or that he failed to keep looking and seeing what he would have seen,' and second, that such negligence on the part of Murray was a proximate cause of Murray's death, they would answer the contributory negligence issue, 'Yes.' The instructions given were in substantial compliance with the requirements of G.S. § 1-180.

Concerning the testimony of Perkins and of Perry, defendants insist that, from where they were, they could not have seen what they testified they did see. It is elementary that the probative value of their testimony was for the jury.

Even so, defendants contend it was error to permit Perkins and Perry to testify that they did not see Murray give any signal to Boyle and did not see Boyle give any signal, by hand, horn or otherwise, before or while he backed his truck. As to the latter, Boyle made no contention that he gave any signal. As to not seeing a signal by Murray, the gist of the testimony of Perkins and of Perry was that Murray was dealing with Jones, at his truck, facing away from Boyle, when Boyle started and continued to back his truck. And Jones testified, without objection, as follows: 'I did not at any time see him turn his face in the direction of the truck of Joe Boyle, or give any signal in that direction whatsoever. I did not hear the sound of any horn...