Tillman v. Bellamy
| Decision Date | 04 May 1955 |
| Docket Number | No. 533,533 |
| Citation | 87 S.E.2d 253,242 N.C. 201 |
| Parties | Mrs. Mayo TILLMAN v. Jimmy Shelton BELLAMY. |
| Court | North Carolina Supreme Court |
Warren G. Stack, Charlotte, for plaintiff appellant.
Kennedy, Kennedy & Hickman and Frank H. Kennedy, Charlotte, for defendant appellee.
The only errors assigned and brought forward in plaintiff's appeal realte to the court's charge to the jury, in that the court failed to present certain material phases of the evidence to the jury and declare and explain the law relating thereto as required by the statute, G.S. § 1-180.
The plaintiff points out that the court failed to declare and explain the law as to a material phase of the law of negligence applicable to and inherent in the evidence in this case.
The court properly explained the law of negligence as it related to the defendant's conduct under the allegations of the complaint and as shown by the testimony, and also as to defendant's contention that the negligence of B. G. Lindsay, the driver of the automobile in which plaintiff was riding, was the sole proximate cause of the collision and of the injury complained of. But plaintiff contends there was error in failing to call the jury's attention to the question of the concurring negligence of Lindsay and defendant Bellamy, a substantive feature of the case arising on the evidence.
The principle seems firmly established by the decisions of this Court that if Lindsay, the driver of the automobile in which plaintiff was riding, was guilty of negligence in stopping without warning, and the defendant Bellamy was also guilty of negligence in relation to the same transaction, and the negligence of each contributed proximately to plaintiff's injury, the defendant would not be relieved of liability therefor, unless the negligence of Lindsay, plaintiff's driver, was the sole proximate cause of the injury. The negligence of Lindsay was called to the attention of the jury but only in connection with defendant's allegation the Lindsay's negligence in the respects alleged was the sole proximate cause of the collision. Plaintiff would not be barred by the negligence of Lindsay unless it was the sole efficient cause of her injury. In the language of Stacy, C. J., in Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690:
To the same effect are the decisions in Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682; Price v. City of Monroe, 234 N.C. 666, 669, 68 S.E.2d 283; Smith v. Sink, 210 N.C. 815, 188 S.E. 631; Cunningham v. Haynes, 214 N.C. 456, 199 S.E. 627; Crampton v. Ivie Bros., 126 N.C. 894, 36 S.E. 351.
This principle is applicable when the facts are such as to justify the view that the several acts of negligence on the part of two different persons concur in contributing proximately to the injury complained of. Smith v. Grubb, 238 N.C. 665, 78 S.E.2d 598; Cunningham v. Haynes, supra.
In the case at bar we have examined the court's charge in the light of the plaintiff's exception, and note that, after calling the jury's attention to the duty of the defendant to observe the speed laws and to maintain safe interval between automobiles, and to the duty of Lindsay to give a proper signal on stopping, the court, on the first issue, charged the jury if they found from the evidence and by its greater weight that the defendant in the operation of his automobile on this occasion was negligent in any of the respects alleged in the complaint, setting these out separately and accurately, and such negligence was the proximate cause of the injury, they should answer the issue yes; otherwise, no. Immediately following, the court added: 'Or if, after taking into consideration all the evidence in the case, you find that the sole proximate cause, the producting cause of the collision, was the negligence of Lindsay, the operator of the vehicle in which the plaintiff was riding, then it would be your duty to answer issue number 1, no.'
Inadvertently the court failed to charge the jury that if they should find from the evidence that both Lindsay and defendant Bellamy were...
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Hayes v. City of Wilmington
...197; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R.2d 682; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273; Tillman v. Bellamy, 242 N.C. 201, 87 S.E. 2d 253. These decisions emphasize the principle that an intervening cause which will relieve the original wrongdoer of liability ......
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Batts v. Faggart, 378
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