Newbern v. Leary

• Decision Date: 01 March 1939
• Docket Number: 24.
• Parties: NEWBERN v. LEARY et al.
• Court: North Carolina Supreme Court

1 S.E.2d 384

215 N.C. 134

NEWBERN v. LEARY et al.

No. 24.

Supreme Court of North Carolina

March 1, 1939

This is an action for actionable negligence brought by plaintiff against the defendants. The allegations of the complaint, in part, are as follows: "That on or about the 18th day of March, 1938, plaintiff's intestate was riding in a certain Plymouth automobile which was then and there being carefully and prudently driven along the public highway in Bertie County on the road leading from Windsor to Edenton said plaintiff's intestate being then on his way to his home in Elizabeth City; that the car in which plaintiff's intestate was riding had passed the intersection of N. C Highway No. 30 with N. C. Highway No. 35, and had gone to the east of said intersection of said highway where it stopped preparatory to backing up to a filling station a short distance to the rear, leaving a clear and unobstructed space of twelve feet or more of the concrete portion of said highway on his left; that, while at this point, a motor truck owned by defendants and operated by one Elton Holley, their employee, then and there acting in the scope of his employment, approached from the west at a high, rapid and dangerous rate of speed, and crashed into the car in which plaintiff's intestate was riding, practically demolishing the same, seriously injuring the driver thereof, and inflicting serious and painful bodily injuries upon plaintiff's intestate, which resulted in his death within a short time thereafter. That the car in which plaintiff's intestate was riding was being driven on the right side of the said State Highway No. 30, and that the truck and trailer of the defendants, which were then being used in their business, were carelessly and negligently driven in that the driver of the truck towing said trailer was an inexperienced and incompetent one, and in that the said truck and trailer were being moved at a high, dangerous and rapid rate of speed, and in that no lookout was kept upon the said road for traffic moving thereon, and in that the truck was not equipped with proper headlights, and in that the driver of said truck did not have the same under control and in that the driver of defendants' truck did not operate the same with due care for the safety of pedestrians and vehicles using the highway, and in that he failed to turn out and pass the car in which plaintiff's intestate was riding, when by exercise of reasonable diligence, he could have easily done so, and in that the defendants' truck and trailer were not equipped with proper and sufficient brakes, by reason of which negligence, the death of plaintiff's intestate was proximately caused." Allegation and prayer for damage.

The defendants denied the material allegations of the complaint and set up the plea of contributory negligence.

The plaintiff in reply said: "It is further expressly denied that plaintiff's intestate was guilty of any negligent act, or omission to act, causing or contributing to his injury and death, as alleged in the answer. And, in this connection, plaintiff further avers that, even had her intestate been guilty of negligence, causing or contributing to his injury or death, as alleged in the answer, which is again denied, the defendants yet, by the exercise of due care, to-wit, by refraining from the negligent act and omissions alleged in the complaint, could easily and readily have avoided the injury and death of her intestate--that is to say that, notwithstanding the negligence, if any, on the part of her intestate, which is again denied, the defendants yet had the last clear chance to avoid and by the exercise of ordinary diligence could have avoided his injury and death."

The evidence of plaintiff, in part, was as follows:

Junius Best, a colored boy (having license to drive) about 17 years old at the time, was driving for plaintiff's intestate who was killed, testified, in part:

"I know where there is a filling station on that road between Edenton and Windsor known as 'Mid-Way'. We passed there just about 7:30 on our trip to Elizabeth City. I was driving at that time. Mr. Newbern was in the car with me; he was sitting beside me--in the front seat. As I was going by the filling station, it was lit up, and two forks come out--of the road--he had not been long woke up--he had been asleep, and he told me to stop to let him see where we were. I was never on the road and I stopped on the road, and looked back. I looked back and started to back and when I started to back this truck was right on the back of me. Before I stopped I had gone on by the filling station. Before I started to back I looked back in the direction from which I had just come. I couldn't see anything. That road, leading both west and east of that filling station, is straight. I would say it is straight on each side of that filling station for about half a mile. I do not know where I had gotten on the highway before I stopped--that is, east of the filling station. I was around 200 feet down the highway from the filling station. I remember a highway sign on the right, on the side of the road, with a number on it. I was right at that sign. *** I was on the right-hand side of the highway when I drove down the road and made this stop. I was about two feet off the concrete--the right-hand wheels. The rear lights on my car were burning. I know that because we had stopped to get some gas and I looked at my lights. I got the gas between Wilson and Raleigh--on the same afternoon. I had two good front lights.

"(By the Court: How many rear lights were on that car? Ans. One.) I had not quite started to back my car at the time the truck struck me; just started to release my clutch. I didn't see that car any more after that collision. At the time I drove up there and stopped there was no car meeting me, coming from the direction of the Chowan River Bridge. No car came from that direction at any time before I was struck; I didn't see one. I don't know exactly how wide the road is along there. *** When I drove up near that highway sign I gave a signal of stopping--hand down. *** I held my hand down as a signal in this angle (indicating), then I stopped. Then I looked back down the highway toward the filling station, before I started backing. There was no car between me and the filling station that I could see; and I could see that filling station clearly. After I had started to back I was struck by the truck. *** I didn't see any car on the road that went out north from this highway. There was no car on the road between me and the filling station when I looked back. It was about two or three minutes from the time I stopped my car and started to back before I was hit."

Mr Dennis Cobb, who saw the collision, testified, in part: "I was maybe 10 or 15 steps from the highway. I saw the car that was struck first. I was about half way of that approach when I first saw the car, something like that. I was running along right slow; had just about stopped when the truck hit the car. The car came up there and came to a stop and started to back up a little. I imagine it came to a stop close to 50 yards from the filling station. It was on the right-hand side of the road. I noticed it had lights. I saw the car it was approaching and passing the highway I was on. I saw the rear light. After the car came to a stop it was in a position when I could see its rear light. After the car stopped it started to back up a little. I first saw the truck about the time the car had stopped and started to back and I glanced back behind the car that was hit and looked back up to see if anything else was coming down the road. The truck was coming from towards Windsor--from the west, going east. The car in which Mr. Newbern was riding had stopped on the Edenton side of the filling station. I was facing towards Edenton. My front was facing the car that was going toward Edenton. After the car had stopped I looked back and saw the truck. The truck had a trailer. *** After the car had stopped I looked back and saw the truck. The truck had a trailer. I should say the truck was doing better than 35; around 40, the best of my estimation. The truck struck the car. I could not see any change in the speed of the truck from the time I first saw it until it struck the car. I could not see that it made any effort to turn to the left. I would say it was around a minute after the automobile in which Mr. Newbern was riding stopped before the truck struck it. I was facing sort of slantingly in the direction of Edenton--that is, towards the car that is stopped. No car was coming down the road from the direction of Edenton at the time, or before this collision. I went to the car after the collision. The truck hit the car, and it kind of got on top of the back wheels of the car and mashed the whole back end of the car in. *** When the truck struck the car it knocked it straight on down the road about 28 steps. I didn't step it off--I saw it stepped off. *** There are two filling stations there, one on each side. They are pretty brightly lit up and were brightly lit up that night, both inside and out. In my best judgment the car stopped about 50 yards east of the crossing. It was somewhat over 50 yards between the place where the car was stopped and the filling station. The lights of those filling stations were bright enough so anybody could see easily anything between the place where the car stopped and the filling station. *** About a minute before, the truck struck this car, the car had stopped, and after it had stopped it had started backing, and had backed about 10 or 15 feet. It was coming back slow, 5 or 10 miles an hour; just about as slow as a car could go and be in motion. Going at that rate of speed, in my opinion, a car could have been stopped...