Plott v. Howell

• Decision Date: 27 May 1926
• Docket Number: 589.
• Citation: 133 S.E. 167,191 N.C. 832
• Parties: PLOTT v. HOWELL et al.
• Court: North Carolina Supreme Court

133 S.E. 167

191 N.C. 832

PLOTT v. HOWELL et al.

No. 589.

Supreme Court of North Carolina

May 27, 1926

Appeal from Superior Court, Haywood County; Brock, Judge.

Action by J. H. Plott, administrator of the estate of Bessie Stamey deceased, against George Howell and another. Judgment for defendants, and plaintiff appeals. No error.

In action for wrongful death of one killed by automobile, error in nonsuit as to owner of car, who was father of driver, held immaterial, where deceased was found guilty of contributory negligence.

The plaintiff's intestate, a young girl about 18 years of age, was attending a funeral at or near Woodrow, N. C., which village is situated between Waynesville and Canton. The evidence tended to show that there was a large crowd at the funeral, and that in front of the church cars were parked close together on each side of the highway. The plaintiff contended that, as the people were leaving the church, the defendant George Howell drove a Hudson automobile along said highway at a rapid and dangerous rate of speed, and without giving any signal or notice of the approach of said car, and as a result of the negligent operation of said automobile ran over and killed plaintiff's intestate while she was in the act of crossing the road.

There was also evidence on behalf of the defendant that the car was being operated in a careful manner, and that timely signals were duly given, and that plaintiff's intestate ran out from behind a car parked on the side of the road immediately in front of defendant's car, and that the defendant, in the exercise of due care, could not avoid striking plaintiff's intestate.

The defendant Bob Howell was the father of the defendant George Howell and was the owner of the automobile. The automobile was purchased by the defendant Bob Howell, who "permitted all the members of his family to use said automobile for their convenience, pleasure, and business."

At the conclusion of plaintiff's evidence, the court entered a judgment of nonsuit as to the defendant Bob Howell, to which plaintiff excepted.

The jury answered the issues as follows:

"(1) Was the plaintiff's intestate injured and killed by the negligence of the defendant as alleged in the complaint? A. Yes.

"(2) Did the plaintiff's intestate, by her own negligence contribute to her injury and death as alleged in the answer? A. Yes.

"(3) Did the defendant George Howell recklessly and

...