Smith v. Sink

• Decision Date: 30 June 1937
• Docket Number: No. 674.,674.
• Court: North Carolina Supreme Court
• Parties: SMITH. v. SINK et al.

192 S.E. 108
211 N.C. 725

SMITH.
v.
SINK et al.

No. 674.

Supreme Court of North Carolina.

June 30, 1937.

[192 S.E. 108]

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.

Affirmed.

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.

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

[192 S.E. 109]

N.C. 569, 183 S.E. 729; Ingle v. Cassadv, 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 Slate 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; Home v. R. R., 170 N.C. 645, 87 S.E. 523, Ann.Cas.l918A, 1171; Wright v. R. R, 155 N.C. 325, 71 S.E. 306....