Pike v. Seymour

• Decision Date: 30 September 1942
• Docket Number: 34.
• Citation: 21 S.E.2d 884,222 N.C. 42
• Parties: PIKE v. SEYMOUR et al. PIERCE v. SAME.
• Court: North Carolina Supreme Court

21 S.E.2d 884

222 N.C. 42

PIKE v. SEYMOUR et al.

PIERCE v. SAME.

No. 34.

Supreme Court of North Carolina

September 30, 1942

Civil action instituted by David V. Pike to recover damages for personal injuries resulting from an automobile collision, and a civil action instituted by Linford Pierce to recover damages for personal injuries and property damage resulting from the same collision. The actions were consolidated for the purpose of trial on motion of plaintiffs.

Plaintiffs allege that on the 14th day of August, 1941, about 2 o'clock A. M., the defendant, S. B. Seymour, Jr., while driving a Chevrolet truck owned by defendant Walter L Midgett, on business for said Midgett, on the N. C. Highway leading from Edenton to Hertford, wrongfully, carelessly and negligently parked said truck on the right side of said highway and upon the paved surface thereof; and, wrongfully carelessly and negligently left the truck parked on the highway without placing lights thereon or without placing any flares about the same. That the plaintiff, David V. Pike driving a Ford automobile owned by the plaintiff Linford Pierce, and accompanied by the said Pierce, while proceeding on said highway from Edenton to Hertford, on August 14th 1941, about 2 o'clock A. M., ran said Ford automobile into the rear of the aforesaid Chevrolet truck, parked on the highway as set forth above, causing serious personal injuries to plaintiffs and plaintiff Pierce alleges completely demolishing his Ford automobile.

Plaintiff, David V. Pike, testified: "I recall the early morning of August 14th, 1941, the morning of this wreck. I would say the collision occurred around 2 o'clock in the morning. Prior to the collision I had been to Edenton with Linford Pierce; I was driving Linford's car; he was with me. I drove it around Edenton for sometime that night. *** I had been driving the car most of the night. *** Driving from Edenton to Hertford, on the particular point in the road where the collision occurred, there is a straight road for a mile and a half back of us, *** toward Edenton. *** We were driving 40 or 45 miles an hour. From the time we entered the straight stretch of highway, until the collision, I did not see the tail light on any car on that road ahead. * * I had dim lights on the car. My lights lighted up the highway for 75 or 100 feet ahead of the car. When I say dim lights, I mean the lights were shining down on the highway, deflected from the lamps to the road. *** I was 45 or 50 feet from the truck with which I collided when I first saw it. *** I had my foot on the pedal but I did not have time to mash it. I did not actually apply the brakes. *** My brakes were good. *** When I said that my lights would show an object 75 to 100 feet ahead, I was talking about this night in question. I do not know why I didn't see the truck 75 or 100 feet ahead. All I had to do to put on the bright lights was to push a button on the wheel, it would take just a flick of the finger, but I did not push it. *** I did not drive with the bright lights on at any time that night. *** If I had seen the truck 75 or 100 feet ahead, I could have stopped or turned to the left. *** The car hit the truck with terrific force. *** It hit the truck so hard that the impact knocked the hood and the cowl and the top right back against the front seat practically."

The plaintiff, Linford Pierce, testified: "On the night of August 13th, David Pike and I went off together in the car; we went to Edenton. We left Edenton about 1:30; we had put out the young ladies we had been riding with. Mr. Pike was driving the car. *** We had bright lights on the car, all we had to do was push a button and turn them on. Neither Mr. Pike nor I pushed the button. With these dim lights we could see an object on the road about 75 or 100 feet ahead. We could not see further than that, no matter how big the object was. *** Our brakes were good.

"We were traveling about 40 or 45 miles an hour. *** I was looking straight ahead watching the highway; my head lights were burning. *** I saw the truck after the wreck. I didn't see it at all before the accident took place. *** Because the dim lights were showing down underneath the truck and the tires were so much like the highway, I could not see it and Pike could not see it, is what prevented Pike from seeing the truck. ***

"I had been driving the car about a month. The bright lights would show an object far enough ahead that I could see it on the highway. I guess the bright lights would show an object 200 feet ahead. I don't know how far they are supposed to show. If the bright lights had been on, we could have seen an object 150 feet away, is just a guess, and we could have stopped before we hit it; I guess he could have done it. No effort was made to turn my car to the left. Half of the concrete highway was open and there was a 10-foot shoulder over on that side; plenty of room to go by on this side without hitting it."

From the verdicts and judgments for the plaintiffs, the defendants appeal and assign error.

McMullan & McMullan, of Elizabeth City, for plaintiff David V. Pike.

R. Clarence Dozier, of Elizabeth City, for plaintiff Linford Pierce.

J. Henry LeRoy, of Elizabeth City, for defendants.

DENNY Justice.

Defendants' appeal in the Pike case.

Counsel for plaintiff, David V. Pike, filed motion in this Court to affirm the judgment below for the reason that no case on appeal has been settled by agreement of counsel or by order of the Court.

It is admitted on the record that the defendants did not serve statement of case on appeal within ninety days from January 16, 1942, the time allowed by the Court for serving said case; however, defendants contend an agreed case was served and accepted by plaintiff's counsel, as set forth in the following language: "Service of the foregoing accepted case on appeal accepted, this April 20, 1942. McMullan & McMullan, attorneys for plaintiff, Pike."

On May 19th, 1942, plaintiff's counsel filed exceptions to the case on appeal as served by defendants' counsel, and also filed a motion to strike said statement of case from the files of said cause and the records of the Court, for alleged failure of the defendants to serve the case within the time allowed or to present same for acceptance of service within such time.

The trial Court, in passing upon the exceptions of the plaintiff, allowed certain changes in the statement of case on appeal, but found as a fact that said changes were unimportant. The Court also found that the statement of the case on appeal constituted a correct statement of all matters transpiring upon the joint trial of the two cases at the January Term, 1942, of the Superior Court of Perquimans County; and further found that the time for serving the case on appeal had expired at the time when service thereon was accepted by plaintiff's attorneys and that the Court was without authority to settle a case on appeal in the Pike case.

The defendants, in apt time, excepted to and appealed from the failure of the trial Court to rule that David V. Pike, through his attorneys, had accepted service of defendants' statement of case on appeal and had agreed that same constituted the case on appeal.

His Honor did not grant the motion to strike the statement of case on appeal from the files...