Spencer v. Brown, 22.
| Decision Date | 21 September 1938 |
| Docket Number | No. 22.,22. |
| Citation | 198 S.E. 630,214 N.C. 114 |
| Court | North Carolina Supreme Court |
| Parties | SPENCER v. BROWN et al. |
Appeal from Superior Court, Camden County; C. E. Thompson, Judge.
Action by Dr. J. R. Spencer against H. W. Brown and others, for injuries sustained in automobile collision between automobiles of the parties while traveling in opposite directions on a highway. From a judgment for plaintiff, named defendant appeals.
New trial.
Civil action for recovery of damages for injury to person and property resulting from alleged actionable negligence.
This action was instituted in the Superior Court of Camden County.
On the night of October 5, 1935, plaintiff's automobile, while being operated by him and traveling in a northerly direction' on the George Washington Highway in Camden County, North Carolina, came into collision with an automobile of defendant partnership traveling in a southerly direction while being operated by defendant, H. W. Brown, who was accompanied, by a young lady.
The plaintiff alleges negligence and damage. In answer filed the defendants denied the allegations of the plaintiff, and, in pleading contributory negligence, allege:
"Tenth--That * * * such damages and injuries as plaintiff may have sustained to his property and person were proximately caused by the carelessness and negligence of the said plaintiff in that, (a) He operated his said automobile at said time and place at a dangerous and unlawful rate of speed, and particularly at a rate of speed in excess of forty five (45) miles per hour; (b) He operated said motor vehicle at a speed greater than was reasonable and prudent under the conditions thenexisting on said highway, and particularly in the light of the fact that visibility on said road at said time was greatly lessened because of rain and fog then and there existing; (c) He drove his said automobile to the left of the center of said highway; (d) He failed to have his said car under proper control; (e) He failed to keep a proper lookout along said road in the direction in which he was traveling; (f) The head lamps on his said motor vehicle were so constructed and arranged that they projected a glaring and dazzling light to persons in front of said head lamps and particularly to the car then and there being operated by this said defendant, and then and there, as aforesaid, approaching in an opposite direction from that in which the said plaintiff was traveling; (g) He failed to dim his said head lamps as he approached the car which was being driven by this defendant, though this said defendant had repeatedly signalled to the plaintiff with reference thereto; (h) He operated said motor vehicle in a careless and reckless manner and without due caution or circumspection and in wilful and wanton disregard of the rights and safety of others, particularly the rights and safety of this defendant; and (i) He failed to operate said motor vehicle at said time and place at a careful and prudent speed, not greater than was reasonable and proper, having due regard to the traffic, surface and width of the highway, and of the other conditions then existing on said highway at said time and place."
By consent of counsel for plaintiff and for defendant, the action was removed to the Superior Court of Pasquotank County for trial. On trial in the latter court, and at conclusion of plaintiff's testimony, the court sustained motion for judgment as of nonsuit as to all defendants except H. W. Brown individually. Verdict for the plaintiff was set aside for errors committed on the trial and a new trial ordered.
Subsequently, upon motion of plaintiff, the presiding Judge, upon facts found, entered an order setting aside the order of removal and sent the case back to Camden County for trial. To this order the defendant excepted,...
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