Civil
action for recovery of damages for alleged personal injury.
Plaintiff
alleges that injuries sustained by him on 24 May, 1938, on
West Trade Street in the city of Charlotte, N. C., resulted
approximately from the negligence of the defendants in that
they operated or caused to be operated their taxicab--(a)
"In a careless and reckless manner, at an excessive rate
of speed, *** without due caution and circumspection, and
without keeping a proper lookout for pedestrians and others
crossing West Trade Street"; and (b) "in a way and
manner so as to endanger or be likely to endanger this
plaintiff and others who had occasion to cross said
thoroughfare"; and (c) in that "defendants failed
to exercise ordinary care in the operation of their said
taxicab but on the contrary drove the same or caused same to
be driven at an excessive rate of speed in an improper and
careless manner in view of the circumstances, traffic and
other conditions prevailing upon said thoroughfare".
Defendants
deny the material allegations in the complaint and plead
contributory negligence of plaintiff as bar to his right to
recover in this action.
Plaintiff
offered evidence, briefly stated, tending to show: That he
was struck by a taxi traveling west and operated by the
defendant Claude Kelley, at a point on West Trade Street in a
business district in the block between intersections of that
street with Pine-Mint Street on the east and Graham Street on
the west; that there are traffic lights at each of those
intersections; that at that point West Trade Street is about
40 to 45 feet wide, and is a link in State Highways Nos. 27
and 74; that about 10 o'clock P. M., he got out of his
automobile, parked in front of the Post Office on the south
side of West Trade Street, about midway between the
intersections of that street with Pine-Mint Street and Graham
Street about 150 feet from each intersection, and started
diagonally across West Trade Street to the bus station, which
is on the north of said street; that there are two street car
tracks approximately in the center of the street; and that
two automobiles were traveling west on Trade Street.
Plaintiff testified: "When I reached the third rail, one
of those cars was practically in front of me and I stopped to
let it by, but when I did, *** this taxi *** behind the car
*** whipped around to the left of the car in front, and hit
me *** I was still standing in the street *** waiting on the
car to pass *** I did say that the car was traveling 25 to 30
miles per hour when it struck me *** There were plenty of
lights there, street lights, and there were lights from the
bus station ***. I saw no other cars *** going west on Trade
Street. When I first saw them they were about 15 to 20 feet
from me, the front car." On cross examination plaintiff
further testified, in part: "I got out of the left hand
door of my car. I stood there just a second or two. *** I was
not paying any attention to the signal light at the
intersection at the time and don't know whether it was
red or green. *** Before I started across I didn't notice
either of those signal lights (referring to those at
Pine-Mint Street and at Graham Street Intersections). *** I
saw Kelley's car just a few seconds before it hit me, a
few feet from me, but I couldn't move. Kelley's car
was a good way behind the other car ***. I was watching the
front car, and I was watching back that way too, to the
right. The front car was going slow, and I would say
something like 15 miles per hour. Both cars were on this side
of the lights when I saw them, on this side of Pine Street. I
expect the light at the intersection changed a couple of
times before I got across the street *** I did not go in
front of the first car. *** I did not run in front of the
front car ***. He (Kelley) was about 20 feet from me when I
first noticed him, and I didn't have time to move."
E. C
Selvey, city traffic policeman, testified: "I was
standing at the corner of Pine and West Trade Streets. I
heard the noise. I ran down to the place where the accident
took place *** When I got there Mr. Templeton was lying in
the street to the right of the center of the line, right at
the car tracks, *** about 25 feet in front of the
taxicab."
C. P
Yandle testified: "I saw the accident *** I was coming
east on West Trade Street ***. When the taxi came around the
other car, Mr. Templeton was just about the middle of the car
tracks, but he came in ahead there, and you couldn't
judge just what happened to the second. *** He was standing
looking this way, that is, east. My opinion is that the rate
of speed of the taxi when the collision occurred was 25 or 30
miles per hour. The taxi went probably 10 or 12 feet after it
struck him ***. I saw two cars going west, the first was
going around 15, or maybe 20 miles per hour, just rolling
down the street *** Mr. Templeton's body went about 20
feet after the accident, I imagine."
Plaintiff
introduced in evidence the adverse examination of defendant
Claude Kelley, in which he testified in part: "My car
was going west on West Trade Street at 10 o'clock P. M
and the accident occurred in front of the bus station. *** I
stopped at the red light at the corner of Mint Street and
Trade Street. *** I started off in low gear and changed to
second gear, and there were other cars passing me that were
going down Trade Street. Mr. Templeton ran in front of a car
passing me and ran right into the left head light and fender
of my car, the left head light struck him. I was still in
second gear. I was going approximately 20 miles per hour. ***
I saw Mr. Templeton just a second before he and my car came
in contact. After the collision *** he was right on the
street and had been knocked approximately 15 feet west, but
kinda on a 45 degree angle to my left ***." On cross
examination he further testified, in part: "I was on the
right hand side of the...
