Shipp v. United Stage Lines, Inc.

• Decision Date: 03 November 1926
• Docket Number: 334.
• Citation: 135 S.E. 339,192 N.C. 475
• Parties: SHIPP v. UNITED STAGE LINES, Inc., et al.
• Court: North Carolina Supreme Court

135 S.E. 339

192 N.C. 475

SHIPP v. UNITED STAGE LINES, Inc., et al.

No. 334.

Supreme Court of North Carolina

November 3, 1926

Appeal from Superior Court, Durham County; Schenck, Judge.

Action by Stone Shipp, by his next friend, N. R. Shipp, against the United Stage Lines, Incorporated, and the Safety Coach Lines Incorporated. From a judgment for plaintiff against defendant first named, and from part of a judgment for defendant last named, plaintiff and defendant first named appeal. New trial.

Instruction that plaintiff, injured when bus backed off road to avoid being struck by approaching bus, would not be entitled to recover of latter bus unless it actually hit standing bus held error.

Civil action to recover damages for an alleged negligent injury tried upon the following issues:

"(1) Was the plaintiff, Stone Shipp, injured by the negligence of the defendant United Stage Lines, Inc., as alleged in the complaint? Answer: Yes.

"(2) Was the plaintiff, Stone Shipp, injured by the defendant Safety Coach Lines, Inc., as alleged in the complaint? Answer: No.

"(3) Did the plaintiff, Stone Shipp, by his own negligence, contribute to his own injury, as alleged in the answer? Answer: No.

"(4) What damages, if any, is the plaintiff, Stone Shipp, entitled to recover of the defendants? Answer: $22,000."

From a judgment on the verdict in favor of plaintiff against the defendant United Stage Lines, Inc., and exculpating the defendant Safety Coach Lines, Inc., from liability, the plaintiff and the United Stage Lines, Inc., appeal, assigning errors.

Brawley & Gantt, of Durham, for appellant Shipp.

Biggs & Broughton, of Raleigh, for appellant United Stage Lines, Inc.

Brooks, Parker & Smith, of Greensboro, and Fuller, Reade & Fuller, of Durham, for appellee Safety Coach Lines, Inc.

Plaintiff's Appeal.

STACY C.J.

The plaintiff appeals only from the verdict on the second issue and that part of the judgment which exculpates the defendant Safety Coach Lines, Inc., from liability.

It appears that on November 24, 1924, about 5 o'clock in the afternoon, the plaintiff, a boy 14 years of age, was standing on the side of the Raleigh-Durham highway, in front of his father's home near Nelson, when he was injured by a bus of the United Stage Lines, Inc., as it backed off the highway in order to avoid a collision with a bus owned and operated by the Safety Coach Lines, Inc., or was hit and knocked off the highway by the said last-named bus. The drivers of both busses were charged with negligence which contributed to and proximately produced plaintiff's injuries. The allegation of the complaint, as amended, in this respect is to the effect "that the driver of the bus of the Safety Coach Lines, Inc., negligently, recklessly, and with wanton disregard for the rights of the public, and the plaintiff continued to bear down upon said bus owned and operated by the United Stage Lines, Inc., at a terrific and reckless rate of speed, and struck the bus operated by the United Stage Lines, Inc., somewhere on the right side of said bus and near the front of same, whereupon the driver of the bus of the defendant United Stage Lines, Inc., suddenly and simultaneously and at or about the moment the bus driven by him was struck by the bus of the Safety Coach Lines, Inc., without any warning, recklessly and wantonly shot said bus back across the road in the direction of the plaintiff," striking him and injuring him, etc.

Under this allegation-the evidence being both ways as to whether the two busses actually collided-the trial court instructed the jury, "as a matter of law, that if they failed to find by the greater weight of the evidence that the Safety Coach bus did hit the bus of the United Stage Lines, Inc., they would answer the second issue 'No."' This instruction is assigned as error and forms the basis of one of plaintiff's exceptions. We think the exception is well taken.

True, it is alleged that the two busses actually collided. But it is also alleged, giving a liberal interpretation to the complaint, that the bus of the Safety Coach Lines, Inc., "continued to bear down upon the said bus owned and operated by the United Stage Lines, Inc.," causing the driver of the latter bus suddenly to back off the road, thereby negligently injuring the plaintiff; and there is evidence tending to support as well as to refute this allegation. Its weight, of course, is a matter for the jury. "The plaintiff is entitled to recover any relief to which the facts alleged in the complaint and the proof entitle him to receive." Clark, C.J., in Henofer v. Realty Co., 178 N.C. 584, 101 S.E. 265. See, also, McCullock v. Railroad, 146 N.C. 316, 59 S.E. 882; Gillam v. Insurance Co., 121 N.C. 372. 28 S.E. 470; C. S. § 506.

Appellee Safety Coach Lines, Inc., says, however, that the plaintiff, by his deliberate allegation of a collision, thereby selected the ground upon which he was willing to wage battle; that he has had a fair chance of winning on his chosen field; that he thought it wise to risk his fortunes on a single strong position rather than take another also which might tend to weaken it; and that he ought not to be given another chance, after losing, to shift his ground to some other position, which he had not taken when he had a fair opportunity to do so. Webb v. Rosemond, 172 N.C. 848, 90 S.E. 306; Allen v. Railroad, 119 N.C. 710, 25 S.E. 787. This is undoubtedly a sound position, for it is well established that a party to a suit may not change his position with respect to a material matter during the course of litigation. Hill v. Railroad, 178 N.C. 612, 101 S.E. 376; Lindsey v. Mitchell, 174 N.C. 458, 93 S.E. 955. Especially is this so where the change of front is sought to be made between the trial and appellate courts. Ingram v. Power Co., 181 N.C. 359, 107 S.E. 209; Coble v. Barringer, 171 N.C. 445, 88 S.E. 518, L. R. A. 1916E, 901. A party is not permitted to try his case in the superior court on one theory and then ask the Supreme Court to hear it on another and different theory. Warren v. Susman, 168 N.C. 457, 84 S.E. 760.

But in answer to appellee's position, we think it is sufficient to say that the fact, if such it be, is not made to appear on the record, and we find nothing in the case which would seem to limit the plaintiff to the allegation of an actual collision. It is true, his honor told the jury that the only allegation of negligence in the complaint was "that the bus of the Safety Coach Lines, Inc., negligently crashed into the bus of the United Stage Lines, Inc., and knocked it against the plaintiff"; but this is not conceded by the plaintiff, and the instruction itself forms the basis of one of his...