Tysinger v. Coble Dairy Prod.S, 668.
|United States State Supreme Court of North Carolina
|225 N.C. 717,36 S.E.2d 246
|17 December 1945
|TYSINGER. v. COBLE DAIRY PRODUCTS.
Appeal from Superior Court, Davidson County; Hubert E. Olive, Special Judge.
Action by Virgie M. Tysinger, executrix of the estate of George E. Tysinger, deceased, against the Coble Dairy Products, a copartnership composed of George S. Coble and others, for deceased's wrongful death. From a judgment as in case of nonsuit, plaintiff appeals.
Civil action to recover for alleged wrongful death, G.S. § 28-172 et seq.
Plaintiff in her complaint alleges actionable negligence. Defendant answering denies material allegations of complaint, and pleads contributory negligence of plaintiff's intestate.
From the pleadings it appears that these facts are uncontroverted: (1) About 3:30 o'clock p. m. on March 21, 1944, George E. Tysinger, who resided on the north side of U. S. Highway No. 29, about three miles south of Thomasville in Davidson County, N. C, was killed when stricken by a loaded truck of defendants, operated by Richard Draughan as their agent and employee on their business, as he, the said Tysinger, was in the act of crossing the said highway from the south side thereof to and in front of his home on the north side. (2) Said highway curves to "the left just beyond and northeast of the said Tysinger home". (3) On said date the highway was "smooth and dry". And (4) plaintiff, Virgie M. Tysinger, is the duly qualified executrix of George E. Tysinger, deceased.
And on the trial below the evidence offered by plaintiff tends to show these facts: The highway from Lexington toward Thomasville at the point in question is 22 feet wide with shoulders on each side estimated by one witness to be 6 to 8 feet in width, and by another from 9 to 14 feet. The defendant's truck was traveling from the direction of Lexington toward Thomasville. To one so traveling, the Tysinger home is on the left of the highway. On the opposite or right side of the highway is the R. W. Everhart home, which is nearer to Thomasville than is the Tysinger home. The edge of the porch of the Everhart home is about 9 feet from the right edge of the hard surface of the highway. In going from the Everhart home to the front of Tysinger home, "to cross straight", one would have to walk up the highway a little toward Lexington and then cross. From the Everhart home, according to testimony of Mr. Everhart, . According toanother, "The driver driving the Coble truck * * * could see a man on the highway in front of or near the Tysinger home a distance of approximately 300 yards". And in the judgment of another, "As you approach the Tysinger home toward Thomasville the driver of the truck can see about 300 yards".
Mr. Everhart, who was the only eyewitness, testified: And on cross examination, this witness continued:
The witness R. L. Lopp testified:
Then on cross examination, the witness continued:
Plaintiff further offered evidence tending to show blood stains and glass on the pavement near the center line of the highway "approximately in the middle of the road"; that marks on the highway "started about the center of the right hand side, the center between the center line and the edge of the paving and * * * cut across the center mark in the direction of the truck; and that the truck came to rest with its rear wheels on the left shoulder and one front wheel on the pavement. And with respect to the marks: The witness N. R. Kinney, who says that he is a civil engineer, and that he came upon the scene while the Coble truck was there on the left hand side of the road toward Thomasville, testified:
And the witness Everhart testified:
Also, the witness Lopp, testifying thereto, said:
There is also evidence tending to show the body of the truck was wider than the cab.
Plaintiff having introduced evidence and rested, defendant moved for judgment as in case of nonsuit. The court, being of opinion that the motion ought to be allowed, entered judgment in accordance therewith, and dismissed the action.
Plaintiff appeals therefrom to the Supreme Court and assigns error.
W. H. Steed, of Thomasville, and Phillips & Bower, of Lexington, for appellant.
McCrary & DeLapp, of Lexington, for appellee.
Plaintiff's challenge to the correctness of the judgment as of nonsuit from which this appeal is taken raises for decision two questions:
1. Taking the evidence shown in the record in the light most favorable to plaintiff, as we must to in considering judgments as in case of nonsuit, is there sufficient evidence of actionable negligence on the part of defendant to require the submission to the jury of an issue with respect thereto?
2. If so, upon all the evidence, was the plaintiff's testator guilty of contributory negligence as a matter of law?
We are of opinion and hold that the evidence fails to show actionable negligence against the defendant. But if it be conceded that it does make such a case, we are of opinion and hold, as a matter of law, that upon all the evidence shown in the record, the...
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Cox v. Hennis Freight Lines, 240
...... Boles v. Hegler, 232 N.C. 327, 59 S.E.2d 796; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; ......
Thomas v. Lines, 103.
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Thomas v. Thurston Motor Lines
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Garmon v. Thomas, 601
...in that he failed to keep a timely lookout to see what he should have seen and could have seen if he had looked. Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Jenkins v. Johnson, 186 Va. 191, 42 S.E.2d 319. The facts compel the view that the defendant's truck was near the p......