Sparks v. Willis
| Decision Date | 08 October 1947 |
| Docket Number | 242 |
| Citation | 44 S.E.2d 343,228 N.C. 25 |
| Parties | SPARKS v. WILLIS. |
| Court | North Carolina Supreme Court |
This was an action to recover damages for the wrongful death of plaintiff's intestate, alleged to have been caused by the negligence of the defendant in the operation of a motor truck. At the close of plaintiff's evidence, the defendant's motion for judgment of nonsuit was allowed, and from judgment dismissing the action plaintiff appealed.
Proctor & Dameron, of Marion, W. C. Berry, of Bakersville, and McBee & Mc-Bee, of Spruce Pine, for plaintiff-appellant.
Williams Cocke & Williams, of Asheville, for defendant-appellee.
The only question presented by this appeal is whether the plaintiff has offered sufficient evidence of actionable negligence on the part of the defendant to carry the case to the jury.
The plaintiff's intestate, a child six years of age, was crushed to death under the rear wheels of a heavily loaded motor truck driven by the defendant. The fatal accident occurred on a street within the corporate limits of the Town of Spruce Pine. The street was paved, 18 feet wide, and extended in an east and west direction. The truck was proceeding east, and the child came from the south side of the street and was running diagonally north across the street when he came in contact with the truck. His body after he was run over lay four of five feet from the north side of the street. The tire marks on the pavement indicated the brakes on the truck were applied at a point 60 feet west of the place of collision; that the truck then ran sharply to its left, and after striking the child, continued on across the ditch on the north side of the street, and plowed through a hedge for a distance of 36 feet before coming to rest. There was evidence that the truck before the accident was on its right side of the street, and travelling at a speed 25 to 30 miles per hour, upgrade, on a dry pavement, and that the day was clear. There was some evidence that the place where the accident occurred was within a business district, as defined by G.S. s 20-38(a), or at least within a residential district, G.S. s 20-38(w)1. Under the statute then in force (1946) speed of a motor vehicle in excess of 20 miles per hour in a business district, or 25 miles per hour in a residential district would constitute prima facie evidence that the speed was unreasonable and unlawful. G.S. s 20-141.
The evidence was that the child came from the south side of the street, probably from a garage, and was running across the street, apparently unconscious of the approach of the truck. One of the two witnesses who saw the child before he was killed observed him about the middle of the street, and the other saw him one-third of the way across, and both said that as the truck cut to its left the child ran into the truck and fell under the rear wheels. There was evidence that the horn was not sounded.
Though there were several automobiles parked on the south side of the street, they appear to have been parked off the street and west of the garage, nor did it appear from plaintiff's evidence that the child ran from behind either of these automobiles, or was concealed by them. Contributory negligence was not...
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