Sparger v. North Carolina Public Service Co.

• Decision Date: 07 November 1917
• Docket Number: 391.
• Parties: SPARGER v. NORTH CAROLINA PUBLIC SERVICE CO.
• Court: North Carolina Supreme Court

93 S.E. 975

174 N.C. 776

SPARGER v. NORTH CAROLINA PUBLIC SERVICE CO.

No. 391.

Supreme Court of North Carolina

November 7, 1917

Appeal from Superior Court, Guilford County; Long, Judge.

Action by James H. Sparger against the North Carolina Public Service Company. From judgment for plaintiff, defendant appeals. No error.

In action for personal injuries held jury question whether there was negligence on part of defendant's servants after they discovered or could have discovered plaintiff's danger.

On the morning of November 10, 1915, plaintiff was driving in his buggy, north on Elm street, on the right-hand side of North Elm street, and his horse turned west of his own accord into Gaston street, which intersects North Elm at a right angle. To do so it was necessary to cross the tracks of defendant. The plaintiff's place of business was on Gaston street and for months it had been his custom to make this trip, with his horse, along this route. He did not look up or down the track before entering upon the track, and was not controlling the horse with the lines at the time, though he had hold of them. He did not see the car before he got on the tracks, and, when he first observed it the car was 125 or 140 feet north from him, traveling 20 to 25 miles per hour. He was on one of the principal streets of the town. The motorman did not ring any gong, nor sound any warning, and did not slacken his speed. Plaintiff urged his horse forward, but failed to get entirely off the track after doing all he could to do so. The car struck a spoke on one of the rear wheels of the buggy, overturned it, and threw plaintiff violently to the ground.

The defendant objected to the third issue, "as to the last clear chance," and the instruction in regard to it, and moved to nonsuit the plaintiff. The jury found that defendant was negligent, that plaintiff was guilty of contributory negligence, but that defendant's servants could have prevented the injury by the exercise of ordinary care, notwithstanding plaintiff's negligence, and assessed the damages at $1,000. Defendant appealed from the judgment.

Jerome, Scales & Jerome, of Greensboro, for appellant.

John A. Barringer, G. S. Bradshaw, and R. C. Strudwick, all of Greensboro, for appellee.

PER CURIAM.

It is found by the jury that both parties were guilty of negligence, the defendant in running at an excessive speed and failing to give proper warning of the approach of the street car, and the plaintiff in attempting to cross the track of the street railway company in a careless manner, and the evidence fully supports the findings....