Swainey v. Great Atlantic & Pacific Tea Co.

• Citation: 162 S.E. 557,202 N.C. 272
• Decision Date: 17 February 1932
• Docket Number: 599.
• Parties: SWAINEY v. GREAT ATLANTIC & PACIFIC TEA CO. et al.
• Court: United States State Supreme Court of North Carolina

162 S.E. 557

202 N.C. 272

SWAINEY v. GREAT ATLANTIC & PACIFIC TEA CO. et al.

No. 599.

Supreme Court of North Carolina

February 17, 1932

Appeal from Superior Court, Buncombe County; Stack, Judge.

Action by Minnie Swainey, administratrix of James Swainey, deceased against the Great Atlantic & Pacific Tea Company and another. From a judgment affirming a judgment of the general county court in favor of plaintiff, defendants appeal.

Reversed.

This action was begun and tried in the general county court of Buncombe county. The plaintiff is the administratrix of her son, James Swainey, who died in the city of Asheville, N. C on October 25, 1930. This action is to recover damages for his death.

In her complaint plaintiff alleges that the death of her intestate was the result of personal injuries which he suffered on October 22, 1930, and which were caused by a collision at the intersection of Merrimon avenue and Maney avenue in the city of Asheville, N. C., between a bicycle on which he was riding, and an automobile which was owned by the defendant the Great Atlantic & Pacific Tea Company, and driven by the defendant B. M. Bealer, Jr. She alleges that the collision was caused by the negligence of the defendant B. M. Bealer Jr., who was an employee of his codefendant, and that at the time of the collision the said defendant was engaged in the performance of his duties as such employee, and was acting within the scope of his employment. The specific acts of negligence on the part of the defendant B. M. Bealer, Jr. alleged in the complaint as the proximate cause of the collision, are as follows:

"(a) The careless, negligent, wrongful and unlawful operation of said Buick automobile by the defendant at a dangerous, reckless and unlawful rate of speed;

"(b) The wrongful and unlawful operation of said automobile by the defendant in driving same around the corner of a street intersection without going beyond the center of said intersection as provided by the laws of this State for the safety of the citizens thereof, and without giving a signal or warning;

"(c) The wrongful and unlawful operation of said automobile around the corner of a street intersection at a greater rate of speed than allowed by the laws of this State in such case made and provided, to-wit:--more than fifteen miles per hour;

"(d) The careless and negligent operation of said automobile without keeping a proper look-out for the rights and safety of this plaintiff's intestate, and others who might be using said street or crossing said intersection at the time and place alleged;

"(e) In the wrongful and negligent manner in which the defendant cut over on to the left-hand side of Merrimon Avenue and around the left-hand corner of Maney Avenue, at such an excessive rate of speed as to make it entirely impossible for this plaintiff's intestate to avoid the collision, although as this plaintiff is advised, informed and believes, he made every effort so to do."

At the trial of the action there was evidence tending to show that between 6:30 and 7 o'clock p. m., on October 22, 1930, there was a collision at the intersection of Merrimon avenue and Maney avenue, in the city of Asheville, N. C., between a bicycle on which plaintiff's intestate was riding, and an automobile owned by the defendant the Great Atlantic & Pacific Tea Company, and driven by the defendant B. M. Bealer, Jr., an employee of said company; and that, as the result of said collision, plaintiff's intestate suffered personal injuries from which he died on October 25, 1930.

The only witness who testified that he saw the collision testified that he did not see the automobile or the bicycle before the collision. This witness was at a filling station located on the corner of Merrimon avenue and Maney avenue standing in front of his automobile, and pouring water into its radiator, at some distance from the intersection of said avenues. He heard a big dull thud. He looked up and saw that some object, which he immediately discovered was a bicycle, had struck the automobile about its windshield. He went at once to the scene of the collision, and there found plaintiff's intestate, lying on the street. The boy was unconscious, and was bleeding at the nose and at the mouth. His feet were pointing down Merrimon avenue, and his head toward Grace street. The defendant B. M. Bealer, Jr., had driven the automobile some distance up Maney avenue. When he was informed of the accident, he returned at once to the scene. The defendant said that he had not realized that there had been a collision between the automobile...