Templeton v. Kelley

• Decision Date: 10 May 1939
• Docket Number: 528.
• Citation: Templeton v. Kelley, 215 N.C. 577, 2 S.E.2d 696 (N.C. 1939)
• Parties: TEMPLETON v. KELLEY et al.
• Court: North Carolina Supreme Court

2 S.E.2d 696

215 N.C. 577

TEMPLETON v. KELLEY et al.

No. 528.

Supreme Court of North Carolina

May 10, 1939

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 defendantClaude 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 HighwaysNos. 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 defendantClaude Kelley, in which he testified in part: "My car was going west on West Trade Streetat 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 street.*** After Mr. Templeton ran *** into my car, I went approximately 10 feet before I stopped.*** The brakes on my car were in good condition *** I cut to the left to try to dodge Mr. Templeton, but did...