Reeves v. Staley

• Decision Date: 07 January 1942
• Docket Number: 739.
• Parties: REEVES v. STALEY et al.
• Court: North Carolina Supreme Court

18 S.E.2d 239

220 N.C. 573

REEVES v. STALEY et al.

No. 739.

Supreme Court of North Carolina

January 7, 1942

Civil action for recovery for alleged wrongful death. C.S. §§ 160, 161.

These facts appear to be uncontroverted: Plaintiff's intestate Olive C. Jones, came to her death in the forenoon of 8 July 1939, at intersection of U. S. Highway No. 421 and State Highway No. 16, at Miller's Creek, North Carolina, in a collision between a Ford sedan, owned and operated by Elijah Sexton in which he, she and four others, two men and two boys, were riding, she on the front seat with driver, and the others on rear seat, traveling southeasterly on State Highway No. 16 from the town of Jefferson toward the town of North Wilkesboro, and a motor express truck owned by defendant, C B. Yates, operated under franchise for purpose of transporting express, traveling northwesterly on U. S Highway No. 421, from North Wilkesboro toward the town of Boone and driven by defendant, F. M. Staley, a duly authorized and empowered agent and employee of his co-defendant, acting at the time in the scope of his employment and in the furtherance of the business of his principal. As U. S. Highway No. 421, for a distance of 1500 feet, approaches the point where State Highway No. 16 intersects with it at Miller's Creek, it runs straight on a north 47 degrees west course, veering slightly to south of that course after it passes the point of intersection. As State Highway 16 approaches the said point of intersection it runs south slightly to the east, but before reaching the intersection the road changes to a southeast course at a greater degree than the course of U. S. Highway 421 and runs straight to the intersection with the latter highway, and enters same on a slightly acute angle. As between the two highways, U. S. Highway 421 is the dominant, and State Highway 16, the subservient road. On the latter there are Stop and Junction signs, erected by State Highway Commission on the right hand side of one traveling from the north toward the intersection.

Plaintiff in his complaint alleges that while the automobile in which his intestate was riding was being operated in a proper and lawful manner, on its right hand side of the center line of the highway, and after it had entered and traversed this intersection of said highways, it was run into headon by the transfer truck.

Plaintiff further alleges in substance as acts of negligence of defendants proximately causing the collision and resultant death to his intestate, that defendant Staley, agent and employee of his co-defendant, unlawfully, negligently and recklessly operated the transfer truck (a) at an excessive and unlawful rate of speed at least sixty miles an hour, and so as to render it unmanageable; (b) to the left of the center line of the highway; (c) in a reckless and indifferent manner, without due care and circumspection, or proper regard for the lives and safety of others, and so as to endanger the lives and property of others upon the highway; and (d) in failing (1) to apply the brakes thereon and to check its speed, (2) to keep a proper lookout upon approaching the intersection beyond which the collision occurred, (3) to yield the right of way to the automobile which had entered and traversed the intersection before it was run into by the truck, and (4) to yield to the automobile its right to one half of the thirty-six feet wide hard surfaced portion of the highway.

Defendants, in their answer, deny these allegations of the complaint, and, as further defense, and by way of new matter, make substantially these averments: (1) That defendant, Staley, was driving the truck in question at a slow, lawful and reasonable rate of speed, entirely upon his right hand side of U. S. Highway 421, when Elijah Sexton, operating the car in which intestate was riding, and traveling on State Highway 16, without any warning or signal, and without stopping as required by law, or even slowing the unlawful speed of sixty-five to seventy miles per hour at which said car was moving as it approached the intersection of said highways, unlawfully, carelessly and recklessly drove the car into the intersection directly in front, and in the path of the truck, in willful and wanton disregard of the rights and safety, and so as to endanger the person and property of others, thereby solely and proximately causing the collision. (2) That plaintiff's intestate, riding on the front seat with Elijah Sexton, in a position to see, understand and appreciate the reckless and negligent manner in which he was operating his car, and the circumstances confronting him, was contributorily negligent in failing to warn him.

Plaintiff in reply denies that Elijah Sexton was negligent in any manner, as averred by defendant, but alleges that if he were negligent, such negligence only concurred with that of defendants, as alleged, in proximately causing the collision and resultant death of intestate.

Upon the trial below, plaintiff offered pertinent testimony of various witnesses, as follows: Lundy Pierce testified that, while he runs a filling station on the northeast side of U. S. Highway No. 421, he was standing on the south shoulder of the hard surface, about 40 or 50 feet from the point of the accident. He describes the occurrence in this manner: "The first thing I knew Mr. Staley blew his horn. *** When I first saw him he was on the right hand side of the center of the highway No. 421, leading toward Boone. When he blew his horn, I looked around, and he threw up his hand, and by that time I notice a car coming into the intersection *** the car Sexton was driving, coming in from 16. Staley was coming up on his side of the road and here comes the automobile on into the intersection. When they saw they were going to hit, Staley cut to the left and the car cut to the right, *** this made them both cutting in the same direction when they hit *** at the end of the hard surface *** partly on both sides of the center line. When they struck the truck bounced up and the car turned back around headed directly west. The truck turned sideways and bounced up and came back down *** on the back end of the automobile and knocked the automobile up the road 75 or 80 feet from where they hit. The truck turned around ***. It was lying across the road on the left side of the center of No. 421 ***. It may have been partly on both sides of the center *** Staley's truck was a mixed load of stuff, feed and grain. In my opinion he was not driving over 35 miles an hour. I saw the other car approaching the intersection, and in my opinion there wasn't much difference in the rate of speed they were driving. Both traveling about 35 miles an hour. If any difference the car *** was running faster than the truck ***. Both cars were badly damaged ***. There were no cars parked in front of the filling station that would obstruct the view of a party coming from North Wilkesboro going toward West Jefferson, in either direction."

Then on cross examination, Pierce continued: "*** There was a Stop sign on 16 below my filling station as you come into 421 from West Jefferson. Said sign has letters in black about seven inches high with yellow background and says Stop, and *** was in plain view of any person driving a car from Jefferson to the intersection and there was also a sign right above and on Highway 16 just before you enter the intersection facing the driver coming from toward Jefferson with the word 'Junction' *** letters *** 7 inches *** in plain view of any person coming from toward West Jefferson *** Staley blew his horn before he entered the intersection ***. He was not looking off of the road at the time he blew his horn ***. The truck was lying on its side after the wreck ***. I didn't hear the party driving the Sexton car blow the horn before he entered the intersection. I think I could have heard it. The Sexton car did not check up in entering the highway ***. It didn't stop until it hit the truck. I saw the car just as it was entering the intersection *** and just a moment before they hit. The front end of the car ran against the front side of the truck and the truck careened around. *** There is a section of the intersection that is not paved. There is nothing to obstruct the view of the sign 'Junction', or signboard, of a car driven from West Jefferson into the *** intersection ***. There is nothing to prevent a driver of such car from seeing a car coming from toward North Wilkesboro. You could see about 1200 or 1500 feet from toward North Wilkesboro to the intersection."

Robert Byers, testifying, said: "I was standing east of the intersection *** Lundy Pierce *** and I were standing about five or six feet apart. I saw the truck coming ***. He was making between 30 and 35 miles an hour. I did not see the car coming into the intersection. I didn't see it until after the wreck occurred. I saw the signs where the cars hit. They were about the middle of the road ***. When I first saw the truck it was coming on its right hand side of the main thoroughfare, No. 421 ***. On the Jefferson road beyond the intersection there is a big yellow sign with black letters saying 'Stop', *** a little closer to the intersection there was a sign on the right side saying 'Junction'. The signs were there the day the wreck occurred. The last time I saw the truck before I heard the collision it was on its right of the center of the National Highway coming *** to Boone ***. I saw some marks on the road where the cars ran together. They were about the center of Highway No. 421, a little more of them on the left hand side."

Carlyle Ingle, State Highway Patrolman, who arrived on the scene after the collision, observed marks on the road. He testified: "They started near the end of the...