This is
an action for actionable negligence brought by plaintiff
administrator of the estate of Dorothy Virginia Reid, against
the defendant City Coach Company, Inc., to recover damages
for the death of his intestate.
The
evidence is to the effect that oh December 24, 1937
Christmas Eve, about 3:00 p. m., plaintiff's intestate
Dorothy Virginia Reid, was struck and seriously injured by a
bus belonging to the defendant company and being driven by
Robert Carpenter, and died the following Thursday. Near the
scene of the injury is Flint Grove Baptist Church, which
Ralph L. Reid and his family attended. It is located on the
South side of the Street from the main Highway on which the
injury occurred. His children attended the Sunday School. On
Christmas Eve a party or "treat" was given for the
children of the Sunday School. Helen Reid, ten years of age
took her little sister Dorothy Virginia Reid, four and a half
years old, with Thelma Ballard, five years old, to the Sunday
School entertainment. The father gave his consent for them to
go. He lived two blocks off and away from and on the North
side of the Church and Highway. In going to the Church the
children had to cross the P. & N. Railroad and the State
Highway No. 7, on which the injury occurred. The mother was
at home. She usually went with the children to Sunday School,
but this time they went alone.
Robert
L. Reid testified, in part:
"In
that settlement there is the church and a good many houses,
people live all the way down the road for about a half mile
this side and I don't know just how far on the side
toward Lowell. The section is called East Gastonia--we have a
post office that is about one hundred and fifty yards from
the scene of the accident. There are five mills out there,
two stores, a barber shop and a church--four or five hundred
people attend the Church. ***
"The
Court: What he is asking you is: What is there bordering on
the highway--whether houses, residences or places of
business? Ans.: Most of them is homes of people who work in
the mill except the
Church, the barber shop and the post office. It is thickly
built all up and down the road. There is a Church on a side
street entering the highway near where the accident
occurred--I don't know the name of the street, but the
Church is about fifty feet, maybe a hundred, from the
highway, and fronts on the side street."
Robert
Carpenter was employed by the defendant and was operating the
bus which was going from Cramerton to Gastonia, through
Lowell and McAdensville and picked up passengers along the
way. After the Christmas party, where the children received
presents, Helen Reid and her sister Dorothy left the Church
to go home the way they had come. Thelma Ballard was with
them. They reached the State Highway, which was 18 feet
hard-surfaced in the center with four to six feet dirt
shoulders on each side and a ditch where the water drained
off the road.
Helen
Reid testified, in part: "We were crossing a ditch and
got to the road and I lifted her across the ditch. We started
down the road and went a little tiny piece and started
crossing the road. We didn't get across. I went to take
hold of her hand and she wouldn't let me. I caught her
dress and she pulled away and I told her to run and she ran.
I saw the bus coming around the curve. It was as far away as
from here to that wall (indicating side wall of courthouse).
I hollered to Dorothy. I don't know how fast the bus was
coming. She just lacked about two more steps being across
when the bus hit her. The bus ran on to the post and stopped.
I went over to where she was. I saw her. She was kind of
close to the back wheel. She had not been moved. I was among
the first ones to get there. She was on the right of the bus.
She was the first one to get to the highway; the least
children got to the highway first. There were a lot of little
ones going down the highway. The least children left the
church first. I am eleven years old. My mother is at home
sick. She couldn't come to court. *** When we got the
treat me and Dorothy and Billy Ballard came to the highway
and started toward Gastonia. Billy Ballard is five. We
started toward Gastonia on the highway. I don't know how
far from the barber shop. I tried to hold my little
sister's hand and she jerked loose and I grabbed her
dress and she pulled away and I hollered to her to run. I
tried to keep her from crossing and she pulled away from me
and went on."
L. F.
Hefner testified, in part: "As the bus passed me, it
seemed like it was running pretty fast-- that was before it
struck the child-- something like fifty yards before. To the
best of my knowledge I'd say it was traveling 40 to 50
miles an hour. I heard him hitting something and jumped out
of my car and went down there and the little girl was laying
there in the road about two feet on the hard surface and a
little girl came running--the child's sister --and
grabbed her right behind there and picked her up and I walked
up to her and said, 'She is too heavy and she is hurt,
too.' And she sat down right in the road out on the dirt
and pulled her up on her lap and sat there and held
her."
Fred
Ware testified, in part: " There were a good many people
on the highway and on the side. I noticed the kids who got
the 'treat'. They all know me as 'Fred' and
came by and showed it to me. That was about five minutes
before the wreck happened. Two hundred or more children
attended the party. Some of them went back of the church, but
those who lived down, up and across the highway would come
down there to that point. Your Honor, I had to go about sixty
feet to the accident. I'd say I was there in two minutes.
There was just two fellows there. The driver was just
stepping out of the cab. The people crowded around so fast.
I'd say there were a hundred or more there. The bus
stopped against the curb where they put rock on there at a
telephone pole--It knocked the telephone pole down. We
measured where the bus went and it was 133 feet from where
the bus started sliding until it hit the post. We got a tape
measure and measured it on the marks on the road where it
slid. It started to slide and went to the right--it slid
practically all of the 133 feet on the dirt shoulder. When I
got there I saw the child--she was laying about middle ways
of the bus right up on the rocks. I don't think the bus
had been moved. The other little girl had her head in her
lap. That is about all I know."
Clarence
Rogers testified, in part: "I don't know exactly the
number of people live there. In the vicinity--counting both
sides, and stores, there would be fifteen or twenty
buildings. The road extends on beyond the scene of the
accident toward Lowell. It is built up about three hundred
yards, roughly speaking. It is a mill village on both sides
of the road--the houses are close together."
Craig
Starnes testified, in part: "Nothing in the way of
houses stopping or farms to show you are outside the city.
(Witness is handed paper for identification.) On that map,
the right-hand side of the road is thicker settled than it is
on the left going out toward Lowell. There are houses and
stores and post office on the left going out and houses,
stores and barber shop on the right going out. There are
practically fifteen houses on the right and on the other side
something like seven or eight. There are mills in that
locality and community streets. Whenever I got there the
other little girl was sitting down and had her little
sister's head on her lap."
The
issues submitted to the jury, and their answers thereto, were
as follows:
"1.
Was the plaintiff's intestate killed as a result of the
negligence of the defendant, as alleged in the complaint?
Answer: Yes.
"2.
What amount, if any, is the plaintiff entitled to recover of
the defendant? Answer: $8,000.00."
The
Court below rendered judgment on the verdict. The defendant
made numerous exceptions and assignments of error and
appealed to the Supreme Court. The material ones and other
necessary facts will be set forth in the opinion.
J.
Laurence Jones and J. L. DeLaney, both of Charlotte, for
appellant.
Jake F.
Newell, of Charlotte, for appellee.
CLARKSON
Justice.
At the
close of plaintiff's evidence and at the close of all the
evidence, the defendant in the Court below made motions for
judgment as in case of nonsuit. C.S. § 567. The Court below
overruled these motions and in this we can see no error.
The
evidence which makes for plaintiff's claim, or tends to
support his cause of action, is to be taken in its most
favorable light for the plaintiff, and he is entitled to the
benefit of every reasonable intendment upon the evidence, and
every reasonable inference to be drawn therefrom.
The
evidence as set forth above is plenary to have been submitted
to the jury on the question of negligence. Goss v.
Williams, 196 N.C. 213, 221-222, 145 S.E. 169; Kelly
v. Hunsucker, 211 N.C. 153, 189 S.E. 664.
The
Court below was requested by defendant to submit the
following issue: "Did plaintiff's intestate, by
reason of the negligence of her parents, contribute to her
injury and death as alleged in the answer?" The Court
below denied the request and defendant excepted and assigned
error, which cannot be sustained.
Helen
Reid was at the time of the injury ten years old. She was
given permission by her father to take her sister Dorothy
Virginia Reid, four and a half years old, to a Christmas Eve
Sunday School entertainment to be held at the Church which
was about two blocks from her home, on December 24, 1937
sometime before three o'clock p. m. We cannot see how the
parents were negligent and contributed to the injury of
Dorothy Virginia Reid, who...
