Tudor,v,bowen.

• Decision Date: 04 May 1910
• Citation: 152 N.C. 441,67 S.E. 1015
• Court: North Carolina Supreme Court
• Parties: TUDOR v BOWEN.

67 S.E. 1015

152 N.C. 441

TUDORvBOWEN.

Supreme Court of North Carolina.

May 4, 1910.

1. Negligence (§ 1^*)—Nature.

Negligence is essentially relative and comparative; the legal duty owed to others being the accepted standard, and being measured by the exigencies of the occasion.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*]

2. Negligence (§ 1^2-*) — Actionable Negligence.

A want of caution to avoid injury where the duty to exercise caution is incumbent, and a reckless or heedless use of a dangerous agency, in a location where the peril from its use is Obvious, constitute breaches of duty, which in causing injury may become actionable negligence.

[Ed. Note.—For other cases, see Negligence, Cent. Dig. § 1; Dec. Dig. § 1.*]

3. Municipal Corporations (§ 705*)—Use of Street—Automobiles.

It is the duty of the operator of an automobile upon highways to employ a degree of care commensurate with the risk of danger to others, engendered by the use of such a machine on a public street and he must use every reasonable precaution to avoid causing injury, which requires him to take into consideration the character of his machine and its tendency to frighten horses.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]

4. Municipal Corporations (§ 705*)—Use of Automobiles—Care Required.

An automobilist must do whatever is reasonably required to relieve persons of peril when he sees a horse is becoming frightened by his machine, and where defendant "cranked up" his automobile in close proximity to a team of horses manifesting fright at the noise, which defendant must have seen if observant, and he continued cranking until his machine started up with such a noise that the horses ran away, he was liable for the damage they caused, especially where his machine to his knowledge was one making an unusual amount of noise when cranked.

[Ed. Note.—For "other cases, see Municipal Corporations, Cent. Dig. §§ 1515-1517; Dec. Dig. § 705.*]

Appeal from Superior Court, Forsyth County; Long, Judge.

Action by George G. Tudor against R. J. Bowen. Judgment for plaintiff, and defendant appeals. Affirmed.

The plaintiff alleged that his team of horses were made to take fright and run away by reason of the negligent management and operation of an automobile by defendant upon the streets of Winston-Salem, whereby plaintiff was damaged.

Upon the pleadings these issues were submitted:

"(1) Was the plaintiff's property injured by the negligence of the defendant, as alleged in the complaint? Ans. Yes.

"(2) Did the plaintiff, or his agent, by his own negligence contribute to the injury to his own property? Ans. No.

"(3) What damage, if any, is the plaintiff entitled to recover? Ans. $168."

There was a judgment for plaintiff, from which defendant appealed.

The defendant excepted to each of the following paragraphs of the charge of the court, and assigned the same as error:

"(2) Although the jury may find that there was nothing unusual about the defendant's automobile, and that it did not make any unusual noise, still, if they further find that the defendant knew, or could by the exercise of that care required of him under the circumstances—that is, by the use of ordinary care—have known, that the horses were restless and had been frightened by his automobile, if the jury find as a fact that they were restless and frightened thereby, then it was a wrongful and negligent act for him to have done anything in reference to his automobile which would have been considered by an ordinarily prudent man to have a tendency to increase their fright and cause them to run away; and, if the jury find that the defendant, under the circumstances just stated, cranked his machine and started it off, and by the noise made thereby the team was caused to run away, they will answer the first Issue 'Yes.' "

"(3) If the jury should find from the evidence that, in attempting to start the defendant's machine, it made an unusually loud and alarming noise, one calculated to startle, or frighten horses of ordinary temper and training, and this condition of the machine was known to the defendant, it was his duty in operating said machine to use reasonable prudence in seeing that no horses or animals were about, and so situated as, under reasonable circumstances, would be frightened by the starting of the said machine; and if the defendant, knowing that he had a machine which made such an unusual and alarming noise, failed to look around or to regard horses that were frightened in his immediate vicinity, and went on cranking his machine, making such a noise as would reasonably scare horses of ordinary temper and training, and if thereby as a proximate result plaintiff's horses were scared and the injury brought about, he would be guilty of negligence, and you will answer the first issue 'Yes.' "

Watson, Buxton & Watson, for appellant.

Manly & Hendren, for appellee.

BROWN, J. No motion to nonsuit was made, and no assignment of error challenges the sufficiency of the evidence upon the issue of negligence. So we have to consider only the correctness of the portions of the charge excepted to in view of the evidence adduced on the trial. In the brief the defendant abandons the first assignment of error, and confines his criticisms to the second and third paragraphs of the charge.

The evidence introduced by the plaintiff tends to prove that the defendant was driving his automobile on the streets of Winston-Salem, and stopped it for purposes of examination within a few feet of where plaintiff's team of horses were standing harnessed to a surrey and in charge of a competent driver; that the machine could not be seen by the horses, but could be heard by them; that when the machine was being cranked forthe purpose of starting, one horse began to prance and show symptoms of fright; that the cranking kept on and did not stop,...