Rountree v. Fountain, 288.

• Decision Date: 26 October 1932
• Docket Number: No. 288.,288.
• Citation: 203 N.C. 381,166 S.E. 329
• Parties: ROUNTREE. v. FOUNTAIN.
• Court: North Carolina Supreme Court

166 S.E. 329

203 N.C. 381

ROUNTREE.

v.FOUNTAIN.

No. 288.

Supreme Court of North Carolina.

Oct. 26, 1932.

Appeal from Superior Court, New Hanover County; Grady, Judge.

Action by George Rountree, Jr., administrator of Howard Brown, deceased, against W. G. Fountain. From a judgment for defendant, plaintiff appeals.

Affirmed.

Herbert McClammy, of Wilmington, for appellant.

Robert W. Davis, of Southport, and Robert D. Cronly, Jr., of Wilmington, for appellee.

ADAMS, J.

This is an action to recover damages for

the death of the plaintiff's intestate, alleged to have been caused by the negligent operation of the defendant's truck. When the plaintiff rested his case, the court granted the defendant's motion for nonsuit, and for this reason a statement of the material facts is essential to a presentation of the appellant's exceptions.

The death occurred in the town of South-port, Brunswick county, in an alley the outlet of which is on West street. At the northwest corner of the intersection of West and Home streets there is a store which was occupied by C. J. Williamson. Mrs. Souther-land lived in a house situated on a part of the Williamson lot and facing on Howe street. Between her residence and the Williamson store there was an unoccupied space about twenty-five feet in width, and immediately west of these lots is the one on which the deceased lived with his mother and stepfather. There is a twelve-foot alley between this lot and the lots occupied by Williamson and Mrs. Southerland, and in the alley there is an intake valve through which oil is transferred from the tank on the truck to the tank in the store. For four or five years the defendant has periodically delivered oil to Williamson in this way, and for eight or ten years Williamson has used the alley for this purpose. There was no objection to his using it. Mrs. Etherton, mother of the. deceased, rented the house in which she lived, together with thealley and a garage situated at its north end. She testified that the deceased, Howard Brown, born of her first marriage, would have been four years old in November, 1931, and that he was killed in the preceding September.

On the doming of the accident he went across the alley to the home of Mrs. South-erland. She gave him a small box, left him in her yard picking up berries under a magnolia tree, and went across the street. A few minutes afterwards a man named Bender, an employee of the defendant, backed a gasoline or oil truck into the alley, suddenly left the truck, and went to the owner of the store and exclaimed, "Come here, I have killed a child." The body was found about three feet from the sidewalk and about the same distance from the store. Blood was on the sand; nearby was the box. There were bruises on the child's body and his nose was bleeding. The cause of his death was a fracture of the skull.

The plaintiff charges, as the principal acts of negligence, the defendant's failure (1) to give reasonable warning when backing the truck into the alley; (2) to keep a proper lookout; (3) to keep the mirror in the truck in repair; and (4) to drive instead of backing the truck into the alley.

Negligence is the breach of a legal duty to use due care. The essential elements of...