Appeal
from Superior Court, Wake County; Harwood, Special Judge.
Action
by Genie Newton, administratrix of the estate of her husband
against Leon S. Brassfield and W. B. Drake, receivers, and
others. Judgment for defendant, and plaintiff appeals.
No
error.
Jurors
cannot impeach their verdict.
This is
an action for actionable negligence brought by plaintiff
against the defendants for damages for killing her intestate.
The defendants denied negligence, and set up the plea of
contributory negligence.
The
issues submitted to the jury and their answers thereto were
as follows:
"1.
Was the plaintiff's intestate, Charles T. Newton
injured and killed by the negligence of the defendants as
alleged in the complaint? Answer: Yes.
"2.
Did the plaintiff's intestate, Charles T. Newton, by
his own negligence contribute to his injuries and death as
alleged in the defendants' answer? Answer: Yes.
"3.
What amount of damages, if any, is the plaintiff entitled
to recover of the defendants? Answer: --."
The
plaintiff made numerous exceptions and assignments of error,
and appealed to the Supreme Court.
M. C.
Pearce, of Henderson, and Thos. W. Ruffin, of Raleigh, for
appellant.
Clyde
A. Douglass and W. B. Jones, both of Raleigh, for appellees.
PER
CURIAM.
The
plaintiff's intestate was killed by a bus operated by
defendant, on June 22, 1929, about 9:15 p. m. on highway No
50, in the village of Forrestville, in Wake county, N.C. The
plaintiff's intestate left surviving him a wife and five
children. The defendants' bus was going around a curve or
semicircle, and killed plaintiff's intestate on the
highway. The jury on the trial of the facts found the
defendants guilty of negligence and the plaintiff's
intestate guilty of contributory negligence.
Some of
the witness for plaintiff testified in part:
Genie
Newton: Saw her husband killed. "From the time the light
shown on him he was 129 steps away, and the bus came just
like an aeroplane. I saw my husband at the time the light
first shone on him, he ran to get out of the way. In regard
to how much
time elapsed from the time the light was on him until the bus
hit him, it was just like lightning." The bus was going
50 miles an hour; the road was crooked. She further
testified: "A driver of an automobile could see around
this curve after he turned, but the bus driver could not see
from where he was. The bus was twenty-nine steps from my
husband when the light shone on him." On
cross-examination: "My husband was hit on the right
side, by the left fender of the bus. He was not trying to run
across the road in front of the bus. He was trying to get out
of the way of the bus. *** It was the left fender and lamp
that hit him. It was turning to the left when it hit him. It
was going around a curve. *** He (my husband) was in a curve
and he could not see." In response to the question,
"What was there to keep him from seeing across an open
space where it ends?" witness answered, "You just
could not see. It (the highway) was crooked. It was as
crooked as your arm. You cannot look across and up where the
curve begins. *** He was not a deaf man, and he was not hard
of hearing. His hearing was all right. His eye sight was
good." In response to the question, "Could he see
all right; do you know why he went across the road and turned
back to go that way?" witness answered, "He just
changed. He started slowly across the road, and he kept a
slow gait until the light of the bus shined on him and then
he ran. He was already in front of it when the light shined
on him. The left fender struck him. It just came like that
and hit him while he was running to the right side."
W. T
Raines testified in part: "The bus ran 220 feet after it
struck Mr. Newton. It carried the body of Mr. Newton 107
feet, and it went 113 feet before it dropped the body, making
a total distance of 220 feet." On cross-examination:
"The bank would not interfere with the view of the man
on the road, but it would interfere with the light of a bus
seeing a man. A man in the center of the road could see
beyond the curve if he would stop and look. If Mr. Newton
stopped in the road before going on that road he could have
seen that bus coming down the road. The bus was running fifty
miles per hour before it hit. *** It was a star light night.
It was not bright. There was a light where it happened on
that post. *** I said awhile ago if Mr. Newton had stopped
and looked towards Wake Forest he would have seen the light,
but his back was towards Wake Forest. The bus driver could
not have seen...
