Queen City Coach Co. v. Lee

• Decision Date: 30 October 1940
• Docket Number: 163.
• Citation: 11 S.E.2d 341,218 N.C. 320
• Parties: QUEEN CITY COACH CO. v. LEE et al.
• Court: North Carolina Supreme Court

11 S.E.2d 341

218 N.C. 320

QUEEN CITY COACH CO. v. LEE et al.

No. 163.

Supreme Court of North Carolina

October 30, 1940

This is an action for actionable negligence, brought by plaintiff against Clyde Lee and Berry B. Freeman, administrator of the estate of Andrew Freeman, deceased, to recover the sum of $250 for alleged damage to plaintiff's bus. The defendant Clyde Lee, who owned the automobile involved in the wreck denied negligence and set up a counterclaim for $250 damage to his car. Plaintiff in reply denied the allegations of Clyde Lee. Berry B. Freeman, the administrator of the estate of Andrew Freeman, denied negligence and set up a counterclaim against plaintiff for the sum of $100,000 for negligence in killing Andrew Freeman. The plaintiff denied negligence and set up the plea of contributory negligence.

The issues and verdict are as follows:

"1. Was the bus of the plaintiff the Queen City Coach Company damaged by the negligence of the intestate Andrew Freeman, as alleged in the complaint? Ans.: No.

"2. What damages, if any, is the plaintiff the Queen City Coach Company entitled to recover of the defendants Clyde Lee and Berry B. Freeman, administrator of Andrew Freeman, upon the cause of action stated in the complaint? Ans.: None.

"3. Was the automobile of the defendant Clyde Lee damaged by the negligence of the driver of the bus of the plaintiff Queen City Coach Company, as alleged in the said counterclaim? Ans.: Yes.

"4. Was the intestate Andrew Freeman killed by the negligence of the driver of the plaintiff Queen City Coach Company, as alleged in the counterclaim of the defendant Berry B Freeman, administrator of said intestate? Ans.: Yes.

"5. Did the intestate Andrew Freeman, by his own negligence contribute to the injuries whereof the defendants complain in their counterclaim? Ans.: No.

"6. What damage, if any, is the defendant Clyde Lee entitled to recover of the plaintiff Queen City Coach Company upon said defendant's counterclaim? Ans.: $70.00.

"7. What damages, if any, is the defendant Berry B. Freeman administrator of Andrew Freeman, entitled to recover of the plaintiff Queen City Coach Company upon said defendant's counterclaim? Ans.: $15,000.00."

The Court below rendered judgment on the verdict. Plaintiff made numerous exceptions and assignments of error and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Edwards & Edwards, of Elizabethtown, and Robinson & Jones, of Charlotte, for plaintiff-appellant.

Woodrow W. Jones, and Stover P. Dunagan, both of Rutherfordton, and R. Marion Ross, of Charlotte, for defendants-appellees.

CLARKSON Justice.

At the close of defendants' evidence and at the close of all the evidence, the plaintiff made motions for judgment as in case of nonsuit. C.S. § 567. The Court below refused these motions and in this we can see no error.

On a motion to nonsuit, the evidence is to be taken in the light most favorable to the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference drawn therefrom. The competency, admissibility, and sufficiency of the evidence is a matter for the Court to determine. The credibility, probative force, and weight is a matter for the jury. This principle is so well settled, we do not think it necessary to cite authorities.

The record is voluminous, but the facts are simple. The plaintiff's evidence is discarded, as the jury believed the evidence of the defendants. This evidence is to the effect that B. T. Mullis, the driver of plaintiff's bus, left Asheville, N. C., at 6:55 o'clock p. m., on his run to Charlotte, N. C. He was 25 minutes late, having had to wait on the Knoxville, Tenn., bus. The defendants' intestate, Andrew Freeman, was driving a 1931 model Ford automobile. The bus was travelling in an eastward direction, the Ford was going in a westward direction. The collision occurred about 4 miles north of Shelby, on Thursday July 27, 1939, at about 9:15 p. m. The place where the collision occurred was on a curve, the bus going uphill and the Ford coming downhill. The bus, according to witnesses, was running 55, 60 and 65 miles an hour. It was in evidence that the Ford was equipped with proper brakes, steering apparatus and all its important parts were in good condition. The car had oil and gasoline in it. Witnesses who were at the wreck 10 or 15 minutes after the collision said the Ford was torn all to pieces and that Andrew Freeman was under the floor boards dead. The left wheel was off. The body of the car where the driver would sit under the wheel, or under the steering post, was mashed in. The whole left side was all smashed in on the car. One witness testified: "In the cement near this car I saw some scratched places dug out. The car was 8 or 10 feet from the scratched places. At the time I saw it the Ford car was kind of crossways of the road, a little more so back towards Shelby than toward Rutherfordton. I examined the bus some. It was off the hard surface. The front of the car was headed sort of across the road, a sort of an angle more toward Shelby than Forest City. There was an embankment near where the Ford car was. I would say the embankment was 4 feet high. The Ford car was up on the bank. The right rear wheel was kind of dug out, sitting in the bank. About 12 to 18 inches from the scratches were little oil marks, and there was a stream right up the highway I guess 60 or 70 feet. Commencing at where the scratches appear, I observed an oil mark, leading toward Shelby. The bus was over on the right-hand side, over beyond these marks. I did not measure it but it looked to me like this oil mark was 18 or 20 inches from the north side of the black line, or on the Freeman side of the road." Another witness testified: "Where the cement was torn up, leading in the direction of the bus, a black mark started about 10 inches to the south of the hole in the pavement and about 6 inches south of the hole in the pavement there was another black mark. The small black mark was oil and the center one had been scraped with metal. That black line was 14, 16 or 18 inches north of the center line of the highway. I followed that black line to the bus. Going in the direction of where the bus was located, that black line continued on the north side of the center mark 23 steps. I stepped it. Then it crossed the black line and this fresh scratched mark, then crossed the center line; it didn't make much of a curve and did not have to as the road was turned. They went practically straight. I followed that to the bus. The mark I have described followed continuously from the place where the hole was dug out to the bus. The steel mark was plain. When it got to the dirt, the steel mark plowed in the dirt 3 or 4 inches and the oil line was right along with it. The left front spindle on the bus was broken off and the left-hand front wheel back a little, and the left front axle was down in the dirt. It was plowing all the way along and when it run into this gulley it went deep into the bank." Numerous witnesses testified to like effect as the above. The center of the highway had a black line to guide traffic. The defendants' contention was that the bus going up hill on a curve at a rapid rate swerved to the left, crossed the black line and struck the left wheel of the Ford coming down. The bus weighed 12,000 pounds and the Ford 3350 pounds.

Clarence Greer testified, in part: "On or about July 27, 1939, about 9 or 9:15, 3 or 4 miles west of Shelby, I observed a collision between a Queen City Coach Company bus and a Ford automobile. The bus was travelling toward Charlotte and Shelby and the Ford was coming this way. They collided on a kind of curve, on the bend of the curve. I was behind the bus about as far as from here to those gentlemen sitting there. The bus had passed me sometime prior to that. Brice Mullis was driving the bus. I have known him for about a year. I was driving a 1932 model Pontiac coupe. A lady friend, Oma Ledbetter, was with me. She is in Sweetwater, Tennessee, now. At the time I saw the bus and the Ford collide, the bus was over the black line around a foot or two feet. On that curve the bus was making 50 miles an hour, and starting down hill he came by me I would say anywhere from the neighborhood of 55, 60 or 65 miles an hour. From my position on the curve I could see the on-coming car. At the time of the collision the Ford was on the northerly side of the road. After the bus passed me, it had to gain on me."

Plaintiff's evidence was in conflict with the defendants', and the evidence in the record showed Greer to be a disreputable man. The plaintiff's evidence on appeal is eliminated as the defendants' evidence only is considered. The questions as to the weight, probative force and credibility was for the jury to determine, not for us.

The plaintiff contends: "From the above, it will be seen that there was only one vital question of fact in the case upon which side of the center line did the collision occur?" The jury has decided against plaintiff's contentions. The plaintiff requested the following instructions: "At the conclusion of the evidence the plaintiff, in apt time, by duly signed and written requests therefor, duly requested the Court to charge the jury in part as follows: '1. If you find that the collision in question occurred on the right of the center of the highway in the direction in which the plaintiff's bus was going, you should answer the first issue Yes, the third issue No, and the fourth issue No. 2. If you find as facts from the evidence that as the bus and the automobile were approaching each other, the automobile ran to its left into the path of the bus at a time when the bus was...