Powers v. S. Sternberg & Co.

• Decision Date: 02 February 1938
• Docket Number: 168.
• Citation: Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88 (N.C. 1938)
• Parties: POWERS v. S. STERNBERG & CO. et al.
• Court: North Carolina Supreme Court

195 S.E. 88

213 N.C. 41

POWERS v. S. STERNBERG & CO. et al.

No. 168.

Supreme Court of North Carolina

February 2, 1938

Appeal from Superior Court, Henderson County; J. H. Clement, Judge.

Action by Otis V. Powers, administrator, against S. Sternberg & Co. and others to recover for the wrongful death of plaintiff's intestate.Verdict and judgment for plaintiff, and defendants appeal.

Reversed.

Whether driver of truck parked on highway flagged approaching motorist who collided with truck, causing death of guest in automobile, was immaterial as respects right to recover against owner of truck for death of guest, where every appearance indicated to motorist that he was running into an icy condition of the road which he must have seen and been familiar with, because he had passed over it only a few hours before.

Civil action to recover damages for plaintiff's intestate's death, alleged to have been caused by the negligence of the defendants.

The record discloses that on the afternoon of November 27, 1936 about 3:30 or 4:00 p. m., plaintiff's intestate met her death while riding as a guest in a Ford coupé with J. H Bedenbaugh, his wife, and plaintiff's intestate's sister.The car was owned and operated by J. H. Bedenbaugh and all four were sitting on the one seat.They had driven from Greenville, S. C., to Asheville, N. C., on the morning of the same day, and were on their return trip, when the fatal accident occurred just around a curve south of "Mountain Home" on the Asheville-Hendersonville highway.

The road was slick with ice and snow on the pavement at nearly all the places where it was shaded by trees, and there was ice on the curve and straightaway leading from the curve to the scene of the fatal injury.'Twas a clear, cold day wind blowing, sun shining.

As Bedenbaugh approached the curve, he saw a Chevrolet automobile standing on the left shoulder of the road, (2) a Packard car partly turned over in the ditch, on the opposite side, and a little further down, (3) a one and one-half ton Chevrolet truck standing off, slightly on, or considerably on, the right-hand side of the concrete road about 100 feet of where the Packard was in the ditch, and about 50 feet north of an intersecting road.There was also present a number of people, perhaps a dozen, who had gathered about the scene of an accident in which these three motor vehicles were involved.

Bedenbaugh passed between the first two cars in safety, but as he approached the truck he saw a car, driven by Mrs. Henry Fisher, coming in the opposite direction; and, in order to avoid a collision with her car, he applied his brakes, threw his car into second gear, which caused it to skid around on the ice sidewise and hit the rear of the truck with such force as to knock it quite a distance, from 5 to 25 feet, demolished his own car, and instantly killed plaintiff's intestate, who was sitting on his right next to the door.

The evidence is in sharp conflict as to the speed of Bedenbaugh's car.Several witnesses say 30 or 35 miles an hour; others put it at 50 or 60 miles.Mr. Renfrow, witness for plaintiff, testified: "I saw the Ford coming; I knew it was slick there, and was afraid he was going to have a wreck."Bedenbaugh testified: "I hit the truck with my car so hard it was knocked from my car 5 or 10 feet up the road.* * * I could have stopped if there had been no ice there.* * * My car skidded 25 or 30 feet after I applied the brakes."Defendants' evidence is that it skidded much farther.

The truck belonged to S. Sternberg & Co. and was being driven by Taft W. Wallis.The Chevrolet and Packard had "sideswiped" each other, and as a result the Chevrolet struck the left front fender and bumper of defendant's truck, mashed them down upon the tire and incapacitated the vehicle, making it necessary for Wallis to lift them from the wheel, which he did, and then drove his truck 100 feet south to get it off the road.He stopped there, set the hand brake, placed the shift in low gear, and went back to adjust the accident with the drivers of the Chevrolet and Packard cars.They had been in conversation from five to fifteen minutes when the Ford came around the curve.Wallis testifies that he flagged Bedenbaugh, but his signal was ignored.This is denied by Bendenbaugh.There was a liquor bottle in Bedenbaugh's car.He admits having taken a drink early that morning, but says it had no influence upon him.He had liquor on his breath after the accident.

Both defendants demurred to the evidence and moved for judgment of nonsuit.Overruled; exception.

The case was submitted to the jury on the usual issues of negligence, contributory negligence, and damages, which resulted in verdict and judgment for plaintiff.

Defendants appeal, assigning errors.

Smathers & Meekins, of Asheville, for appellants.

M. M. Redden and J. E. Shipman, both of Hendersonville, for appellee.

STACY, Chief Justice(after stating the facts).

The case is controlled by the decision in Smith v. Sink,211 N.C. 725, 192 S.E. 108, which was rendered after the trial of the present cause in the superior court.

Even if it be conceded that defendant's truck was negligently parked on the side of the road, Smithwick v. Pine Co.,200 N.C. 519, 157 S.E. 612;Pender v. Trucking Co.,206 N.C. 266, 173 S.E. 336, which may be doubted on the facts...