Smith v. Carolina Coach Co.

• Decision Date: 19 October 1938
• Docket Number: 239.
• Citation: 199 S.E. 90,214 N.C. 314
• Parties: SMITH v. CAROLINA COACH CO.
• Court: North Carolina Supreme Court

199 S.E. 90

214 N.C. 314

SMITH v. CAROLINA COACH CO.

No. 239.

Supreme Court of North Carolina

October 19, 1938

Appeal from Superior Court, Johnston County; W. C. Harris, Judge.

Action by Alice McGee Smith against the Carolina Coach Company for damages sustained in a collision between plaintiff's automobile and defendant's bus. From a judgment for plaintiff, defendant appeals.

No error.

STACY C.J., and BARNHILL and WINBORNE, JJ., dissenting.

Where plaintiff attempted to pass a bus, saw automobile approaching from opposite direction, returned to a position behind bus and collided with it after it made a sudden stop, plaintiff was not charged with contributory negligence as a matter of law, where it could not be said that her failure to ascertain approach of another automobile was the proximate cause of her injury.

J. M Broughton, of Raleigh, for appellant.

Royall, Gosney & Smith, of Raleigh, and Abell & Shepard, of Smithfield, for appellee.

SCHENCK Justice.

This is an action to recover damages alleged to have been proximately caused by the negligence of the defendant in bringing about a collision between a passenger automobile operated by the plaintiff and a bus operated by the agent and servant of the defendant on Highway No. 10 between Garner and Raleigh. The usual issues of negligence, contributory negligence and damage were submitted and all answered in favor of the plaintiff. From judgment predicated on the verdict the defendant appealed, assigning but one error, namely, that the court erred in disallowing its motion for judgment as of nonsuit made at the close of the plaintiff's evidence and renewed at the close of all of the evidence. C.S. § 567.

The bus of the defendant and the automobile of the plaintiff were both proceeding in a northwardly direction toward Raleigh and the plaintiff's automobile collided with the rear end of the defendant's bus, causing said automobile to leave the highway with resulting personal injury to the plaintiff and damage to her automobile. The evidence viewed in the light most favorable to the plaintiff, giving her the benefit of every reasonable intendment and inference, which we must do upon a demurrer to the evidence, tends to show that the plaintiff was driving behind the defendant's bus, that she attempted to pass the bus, but upon pulling her automobile to the left preparatory to passing she saw a car approaching from the opposite direction, and pulled her automobile back behind the bus, and while driving at a rate of speed of about 40 miles per hour, in a reasonable distance of the bus, the bus was suddenly stopped without any signal being given by the driver of the bus of his intention to stop, and as a result of the sudden stopping of the bus the plaintiff was unable to stop her automobile in time to avoid a rear end collision therewith.

Code 1935, § 2621(59) provides that "the driver of any vehicle * * * before * * * stopping * * * shall first see that such movement can be made in safety * * * and whenever the operation of any other vehicle may be affected by such movement shall give a signal as required in this...