Smith v. Sink

Decision Date30 June 1937
Docket Number674.
Citation192 S.E. 108,211 N.C. 725
PartiesSMITH v. SINK et al.
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Davidson County; Frank M. Armstrong Judge.

Action by Bertha Smith, administratrix of Clarence Smith, deceased against J. Carl Sink and another. From a judgment of nonsuit plaintiff appeals.


Civil action to recover damages for plaintiff's intestate's death, alleged to have been caused by the joint and concurrent negligence of the defendants.

The record discloses that on the night of January, 12, 1936 plaintiff's intestate met his death while riding as a guest on the rear seat of a Model A Ford touring car, owned and operated by the defendant J. Carl Sink. Seven persons were in the car at the time-three on the front seat and four on the back seat-and they were going from Southmont to Lexington on State Highway No. 8 Five miles south of Lexington, the highway crosses over and above the track and roadbed of the defendant railway company on an overhead bridge. This bridge was constructed many years ago by the corporate defendant, but is now maintained by the State Highway Commission, and has been under the latter's control for the last two years or more. The highway approaches this overhead bridge on a sharp curve, requiring approximately a right-angle turn. On either side of the bridge are large signs, reading, "Sharp Turn," "Danger," which are clearly visible at night. The night was cold and frosty. The driver entered the bridge at 20, 30, or 35 miles an hour, and was unable to make the curve. He skidded 23 feet on the bridge, "sideswiped" the railing and guard for a distance of ten feet, and broke down his left rear wheel. As the car passed along the side railing, the loose end of a broken rail entered through the left rear curtain of the car, and struck plaintiff's intestate's chest with such force as to cause his death. The corporate defendant is sought to be held liable because of the broken rail and the dangling loose end.

At the close of plaintiff's evidence, judgment of nonsuit was entered in favor of the corporate defendant; whereupon the plaintiff suffered a voluntary nonsuit as to the individual defendant, and appeals.

Where motorist was unable to make sharp curve on approaching overhead bridge and loose end of broken guard rail inflicted fatal injury on automobile guest, railroad which constructed bridge, even if under duty of keeping bridge in repair after it was placed under control of State Highway Commission, was not liable for guest's death, since active negligence of driver of automobile was real, efficient cause of death.

T. S. Wall, Jr., and P. V. Critcher, both of Lexington, for appellant.

Craige & Craige, of Winston-Salem, and Phillips & Bower, of Lexington, for appellee Railway Co.

STACY Chief Justice.

The case was here before, 210 N.C. 815, 188 S.E. 631, on demurrer to the complaint, C.S. § 511. It is here now on demurrer to the evidence, C.S. § 567. The two are not the same in purpose or result. One challenges the sufficiency of the pleading; the other the sufficiency of the evidence.

In negligence cases, it is proper to sustain a demurrer to the evidence and to enter judgment of nonsuit:

1. When all the evidence, taken in its most favorable light for the plaintiff, fails to show any actionable negligence on the part of the defendant. Love v. Asheville, 210 N.C. 476, 187 S.E. 562; Cheek v. Barnwell Warehouse & Brokerage Co., 209 N.C. 569, 183 S.E. 729; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Grimes v. Coach Co., 203 N.C. 605, 166 S.E. 599; Eller v. R. R., 200 N.C. 527, 157 S.E. 800; Poovey v. International Sugar Feed Number Two Co., 191 N.C. 722, 133 S.E. 12; Young v. R. R., 116 N.C. 932, 21 S.E. 177; Brown v. Kinsey, 81 N.C. 245. See State v. Carter, 204 N.C. 304, 168 S.E. 204; State v. Montague, 195 N.C. 20, 141 S.E. 285. "It all comes to this: That there must be legal evidence of the fact in issue, and not merely such as raises a suspicion or conjecture in regard to it." Walker, J., in State v. Prince, 182 N.C. 788, 108 S.E. 330, 331.

2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person. Newell v. Darnell, 209 N.C. 254, 183 S.E. 374; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573; Ward v. R. R., 206 N.C. 530, 174 S.E. 443; Hinnant v. R. R., 202 N.C. 489, 163 S.E. 555; Chambers v. R. R., 199 N.C. 682, 155 S.E. 571; Burke v. Coach Co., 198 N.C. 8, 150 S.E. 636; Herman v. R. R., 197 N.C. 718, 150 S.E. 361; Hughes v. Luther, 189 N.C. 841, 128 S.E. 145; Lineberry v. R. R., 187 N.C. 786, 123 S.E. 1; Harton v. Tel. Co., 141 N.C. 455, 54 S.E. 299. Compare Brown v. R. R., 208 N.C. 57, 179 S.E. 25.

3. When contributory negligence is established by plaintiff's own evidence. Wright v. Grocery Co., 210 N.C. 462, 187 S.E. 564; Stamey v. R. R., 208 N.C. 668, 182 S.E. 130; Tart v. R. R., 202 N.C. 52, 161 S.E. 720; Scott v. Tel. Co., 198 N.C. 795, 153 S.E. 413; Davis v. Jeffreys, 197 N.C. 712, 150 S.E. 488; Lunsford v. Mfg. Co., 196 N.C. 510, 146 S.E. 129; Horne v. R. R., 170 N.C. 645, 87 S.E. 523, Ann.Cas.1918A, 1171; Wright v. R. R., 155 N.C. 325, 71 S.E. 306. See State v. Fulcher, 184 N.C. 663, 113 S.E. 769. Compare Absher v. Raleigh, 211 N.C. 567, 190 S.E. 897; Boykin v. R. R., 211 N.C. 113, 189 S.E. 177; Oldham v. R. R., 210 N.C. 642, 188 S.E. 106; Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601.

Even if it be conceded that here the corporate defendant was under the duty of keeping the overhead bridge in repair, Stone v. R. R., 197 N.C. 429, 149 S.E. 399, which may be doubted on the facts revealed by the record, Pickett v. R. R., 200 N.C. 750, 158 S.E. 398, still the judgment of nonsuit would seem to be correct; it appearing that the active negligence of the driver of the car was the real, efficient cause of plaintiff's intestate's death. Haney v. Lincolnton, supra; Baker v. R. R., 205 N.C. 329, 171 S.E. 342; Hinnant v. R. R., supra; Herman v. R. R., supra; Brigman v. Const. Co., 192 N.C. 791, 136 S.E. 125, 49 A.L.R. 773.

We had occasion to examine anew this doctrine of insulating the conduct of one, even when it amounts to passive negligence by the intervention of the active negligence of an independent agency or third party, as applied to variant fact situations, in the recent cases of Beach v. Patton, supra; George v. R. R., 207 N.C. 457, 177 S.E. 324; Haney v. Lincolnton, supra; Baker v. R. R., supra; Hinnant v. R. R., supra; Herman v. R. R., supra; Craver v. Cotton Mills, 196 N.C. 330, 145 S.E. 570; Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Lineberry v. R. R., supra. These decisions, and others, are in full support and approval of Mr. Wharton's statement in his valuable work on Negligence (section 134): "Supposing...

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