Newell v. Darnell

• Decision Date: 22 January 1936
• Docket Number: No. 757.,757.
• Citation: 309 N.C. 254,183 S.E. 374
• Parties: NEWELL . v. DARNELL et al.
• Court: North Carolina Supreme Court

183 S.E. 374

309 N.C. 254

NEWELL .

v.DARNELL et al.

No. 757.

Supreme Court of North Carolina.

Jan. 22, 1936.

Appeal from Superior Court, Forsyth County; Hill, Special Judge.

Action by J. Frank Newell, administrator of the estate of Odell Newell, deceased, against Frances Darnell and the City of Winston-Salem. From a judgment sustaining a motion for judgment as of nonsuit as to the defendant city, plaintiff appeals.

Affirmed.

The plaintiff alleged, and offered evidence tending to prove that, on the 21st day of May, 1934, about 10 o'clock at night, his intestate, an 18 year old boy, and his companion, Paul Knouse, were walking along the' sidewalk on the south side of the Waughtown road in the city of Winstpn-Salem, where the road was straight and level for some 300 or 400 feet, with an unobstructed view, and that at intervals along the sidewalk C. W. A. workers, with the consent of the city, had placed piles of sand to be scattered over the sidewalk, which was unpaved, and that the piles of sand had been there some two months; and that, when the plaintiff's intestate and his companion reached the piles of sand, they stepped off of the sidewalk and into the street to go around the piles of sand, and that when they were in the street about five feet out from one of the piles of sand the plaintiff's intestate was struck and killed by an automobile driven by the codefendant, Frances Darnell.

The plaintiff further alleged and offered evidence tending to prove that the co-defendant, Frances Darnell, was negligent in driving her car at an unlawful rate of speed and too near the curb, and in failing to keep her car under control, and in giving no signal or warning of her approach, and in failing to see the plaintiff's intestate in time to avoid striking and killing him.

At the close of the plaintiff's evidence, the court sustained the motion for judgment as of nonsuit as to the defendant city, and the plaintiff appealed, assigning errors.

Slawter & Wall, of Winston-Salem, for appellant..

Parrish & Deal, of Winston-Salem, for appellee.

SCHENCK, Justice.

Conceding, but not deciding, that the city of Winston-Salem was negligent in allowing the piles of sand to remain upon its sidewalk, the plaintiff specifically alleged and proved several negligent, if not criminal, acts on the part of the defendant Frances Darnell, and we are of the opinion that such negligent acts were the sole and proximate cause of the death of the plaintiff's intestate for which the defendant city...