Shirley v. Ayers

• Decision Date: 15 June 1931
• Docket Number: 435.
• Citation: 158 S.E. 840,201 N.C. 51
• Parties: SHIRLEY. v. AYERS et al.
• Court: North Carolina Supreme Court

158 S.E. 840

201 N.C. 51

SHIRLEY. v. AYERS et al.

No. 435.

Supreme Court of North Carolina

June 15, 1931

Appeal from Superior Court, Union County; McElroy, Judge.

Action by G. W. Shirley against N. B. Ayers and another. From an adverse judgment, plaintiff appeals.

No error as to defendant Ayers. Judgment reversed, and cause remanded, as to defendant Eula Shirley.

This is an action to recover damages for personal injuries sustained by plaintiff, resulting from a collision between two automobiles, one owned by the defendant, N. B. Ayers, and the other owned by the defendant, Mrs. Eula Shirley.

The collision occurred on a state highway in Union county, about 6:30 p. m., on December 26, 1929. At the time of the collision, the defendant N. B. Ayers was driving the automobile owned by him; Horace Yandle, a stepson of the defendant Mrs. Eula Shirley, was driving the automobile owned by her, as her chauffeur. The defendant Mrs. Eula Shirley was riding in her automobile with the plaintiff as her guest. They were on the rear seat with Mrs. L. L. Sears, a sister of Mrs. Shirley. Woodrow Burns and Parker Wilson were on the front seat of her automobile with Horace Yandle, the driver.

In his complaint, plaintiff alleges specific acts of negligence on the part of the driver of each of the automobiles as the proximate cause or causes of the collision. These allegations are denied in the answer of each of the defendants. Each defendant alleges that the collision, with the resulting injuries to plaintiff, was caused by the negligence of the driver of the other automobile.

As the result of the collision, plaintiff sustained serious and painful injuries by reason of which he has suffered damages.

After the pleadings had been read at the trial, the plaintiff admitted in open court that, at the time the action was begun, plaintiff and defendant Mrs. Eula Shirley were, and that they are now, husband and wife; they were married on March 30, 1930, after the collision which resulted in plaintiff's injuries, which occurred on December 26 1929.

This action was begun on May 12, 1930. It was agreed that the facts admitted by the plaintiff should be deemed to have been alleged in his complaint to the same extent as if they had in fact been alleged therein.

After the foregoing admission and agreement by the plaintiff, the defendant Mrs. Eula Shirley demurred, ore tenus, to the complaint, and moved that the action be dismissed as to her for that on the facts alleged in the complaint, and admitted by the plaintiff at the trial, plaintiff cannot maintain this action against her. The demurrer was sustained, and the action dismissed as to the defendant Mrs. Eula Shirley.

The action was then tried on issues submitted to the jury involving the liability of the defendant N. B. Ayers to the plaintiff for the damages which he had suffered as the result of the collision.

The jury found that the plaintiff was not injured by the negligence of the defendant N. B. Ayers, as alleged in the complaint.

From judgment that plaintiff recover nothing of the defendant N B. Ayers, and that said defendant recover his costs of the plaintiff to be taxed by the clerk, plaintiff appealed to the Supreme Court.

John C. Sikes, of Monroe, for appellant.

Vann & Milliken, of Monroe, for appellee N. B. Ayers.

Taliaferro & Clarkson, of Charlotte, for appellee Mrs. Eula Shirley.

CONNOR J.

At the trial of this action on the issues submitted to the jury, there was evidence tending to show that as the automobile driven by the defendant N. B. Ayers approached the automobile driven by Horace Yandle, the defendant's automobile, immediately before its collision with the Yandle automobile, was on the right side of the highway, and was proceeding at a rate of speed not in excess of twenty-five miles per hour; that the automobile driven by Horace Yandle, coming from the opposite direction, was approaching defendant's automobile at a rate of speed not less than fifty miles per hour; and that as said automobile approached defendant's automobile, it was in the middle of the highway. The defendant proceeded on the right side of the highway, thinking that the driver of the approaching automobile would turn to the right before the automobiles met. When he was about ten feet from the approaching automobile, defendant realized for the first time that its driver was not going to turn to his right. He then turned his automobile sharply to his right, toward the shoulder beyond the pavement. This was too late. The Yandle automobile struck the front wheel of defendant's automobile, causing it to swerve to the left. The Yandle automobile went across the road, jumped a ditch, and turned over in the field. The plaintiff, who was riding on the rear seat of the Yandle automobile as the guest of the owner, who was also in the automobile, was injured when it turned over.

In the charge to the jury, the court instructed them as follows "The Court further charges you, gentlemen of the jury, that if the jury shall find from the evidence that the defendant Ayers was operating his automobile to his right of the center of the highway, and that the automobile occupied by the plaintiff Shirley, was meeting him, being driven in or near the middle of the highway, then the Court charges you that it would not be the duty of the defendant Ayers to turn his automobile further to his right, even though he may have had room to do so and avoid the accident, for the defendant had the right to assume, up to the point of the collision, that the automobile occupied by the plaintiff would assume its...