Tysinger v. Coble Dairy Prod.S, 668.

• Decision Date: 17 December 1945
• Docket Number: No. 668.,668.
• Citation: 225 N.C. 717,36 S.E.2d 246
• Court: North Carolina Supreme Court
• Parties: TYSINGER. v. COBLE DAIRY PRODUCTS.

36 S.E.2d 246

225 N.C. 717

TYSINGER.

v.COBLE DAIRY PRODUCTS.

No. 668.

Supreme Court of North Carolina.

Dec. 17, 1945.

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.

Affirmed.

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, "You can see a quarter of a mile down towards Lexington. There is no obstruction". 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: "I lived sort of right in front of George Strange's (referring to deceased) house * * * I saw deceased standing in my yard talking. It was just a little before it happened. I started to my porch when it happened. I looked around and saw Mr. Strange (referring to deceased) going across the road, and the side of the truck hit him * * *. He was walking pretty rapid. I didn't hear any sound or signal from the truck. I didn't hear any brakes applied * * * When I first saw the truck it was cutting over kind of left toward Thomasville. It knocked it up the road just a piece--about thirty feet. The body was lying just above my house-- right in the center of the road * * * the truck was making pretty rapid speed." And on cross examination, this witness continued:

"I was talking to George Strange (again referring to deceased) in my front yard on the left side next to Lexington * * * I was standing right at edge of my porch when I was talking to Strange * * * When I stopped talking to Strange I turned toward Thomasville, going around the side of the house. When I got to the corner I turned and looked. The contact was to the side of the truck.

"Q. When you looked you saw Mr. Strange starting across the highway? A. Yes, sir.

"Q. And you saw him continue across the highway into the side of the truck? A. When I got the glance of it he was right in the center of the road.

"Q. You saw him starting across the road when you first looked? A. Yes, sir.

"Q. He kept going right into the side of the truck? He walked right into the side of the truck, didn't he? A. The side of the truck hit him.

"Q. The contact was on that side of the truck? A. Yes, sir."

The witness R. L. Lopp testified: "I have a saw mill there on the right hand side of the highway as you go toward Thomasville. It is about 100 yards from the highway. From the saw mill you cannot see the highway right in front of George's home, but just a little beyond you can see it. I was at the saw mill under the planer shed * * * when George Tysinger was killed. This planer shed is an open shed * * * I heard the truck coming and it hit something; it made a thud like, and I looked up and saw the truck swerving across the road and it was on the shoulder. I saw the truck on left side of the highway * * * going toward Thomasville * * * After hearing it approach, and after hearing a thud, I look around and saw the truck. In my opinion the truck was running 45 miles per hour. Then I walked on up the road. At the time I heard the truck, I don't recall hearing any sound (of a horn or brakes) at all, only some old cans or something made a powerful racket in the truck. When I looked around and saw it, the truck was moving at a high rate of speed and turning crossways and it was twisting about and it was going off the highway. When I saw the truck it was on a fill from the highway * * *."

Then on cross examination, the witness continued: "The shoulders were muddy and soft and the hard surface dry * * * The mill is lower than the highway. You have to go down a hill from the highway to get to the mill. The Everhart home is between the saw mill and the highway * * * The first thing I observed was a thud, --a noise as if something was struck. It attracted my attention. Up to that time I was cleaning up in the shed * * * I did not look up till I heard the thud. I couldn't say what happened before then. I don't know where Mr. Tysinger was before the thud."

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: "I saw black marks on the highway which led in the direction of the truck a distance of about 100 feet * * * Deep ruts were cut in the dirt on the soft shoulder of the highway behind the truck. The best I remember about 6 inches deep, the deepest part. These furrows ran toward the truck or behind it from 10 to 12 feet * * * There was a fill where the truck was standing * * * I made some notes of what I saw. There was a mail box there 9 steps from where Coble's truck was standing. It was 27 steps from the mail box to where the marks begun on the highway."

And the witness Everhart testified: "I saw the marks of the truck wheels * * * on the highway. These marks cut over to the left of the hard surface, over kind of to the left of the road toward my mail box. The truck made the marks. From first to last, the marks went about 30 feet."

Also, the witness Lopp, testifying thereto, said: "The rear of the truck was right on the edge of the fill, but the front part was turned a little toward the highway. The dirt shoulder was soft. I would call it muddy. On the left shoulder I saw ruts about 6 inches deep leading 20 or more feet up to the truck. There were marks that started from the right side of the highway and going diagonally across the highway toward the left side and finally went plumb across the road on the shoulder * * * right up to Coble's truck. Where I first saw the marks it was, I reckon, 150 feet to Coble's truck * * *."

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.

WINBORNE, Justice.

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 plaintiff's testator was negligent, and that such negligence was a proximate or contributing cause of his injury and...