Williams v. Boulerice, 34
| Decision Date | 01 March 1967 |
| Docket Number | No. 34,34 |
| Citation | 269 N.C. 499,153 S.E.2d 95 |
| Court | North Carolina Supreme Court |
| Parties | Mary Gibbs WILLIAMS v. Joseph R. BOULERICE, Cecelia W. Boulerice, Robert E. Hare and William LeonHare. |
John H. Hall, Elizabeth City, for defendants Boulerice, appellants.
Leroy, Wells, Shaw & Hornthal, Elizabeth City, for defendants Hare, appellees.
This is the second appeal in this case. The opinion in the first appeal is reported in 268 N.C. 62, 149 S.E.2d 590. The first appeal was from a trial by Judge Mintz and a jury at the 20 September 1965 Session of Pasquotank, with this result: At the conclusion of plaintiff's evidence, upon motion of defendants, Boulerice, the court entered a judgment of compulsory nonsuit to plaintiff's action against them, and plaintiff excepted. The court denied a similar motion by defendants Hare, and they excepted. Defendants Hare then introduced evidence. At the end of all the evidence defendants Hare renewed their motion for judgment of compulsory nonsuit, which the court denied, and they excepted. The court submitted to the jury issues of negligence and damages. They jury answered the first issue of negligence, No. Judgment was entered in accord with the verdict. Plaintiff appealed from the judgment of compulsory nonsuit entered in her case against defendants Boulerice, and appealed from the judgment that she recover nothing from defendants Hare. The Court in its opinion on the first appeal reversed the judgment of compulsory nonsuit in plaintiff's case against defendants Boulerice, and ordered a new trial in plaintiff's case against defendants Hare for error in the charge to the jury.
A summary of the essential allegations in the pleadings of all the parties and a summary of plaintiff's evidence in the case are set forth in the opinion on the first appeal, except there is no summary of the testimony of plaintiff's witness Noah Gurganus and there is no summary of the testimony of defendants Hare. In the instant case the briefs of all the parties state in substance the evidence in the second trial of this case was substantially the same as the evidence in the first trial, as set forth in the records on both appeals. Such being the case, we deem in unnecessary in deciding the appeal in the instant case to repeat the evidence in this opinion but refer to the evidence as set forth in the opinion of the first appeal.
This is a summary of the testimony of Noah Gurganus in the second trial, a witness for the plaintiff in both trials: On 17 July 1962 he was a member of the Elizabeth City police department. He investigated the accident about 2:50 p.m. on this date. He saw a 1959 Mercury on its left side in a ditch on the north side of Factory Street. He described in detail the ditch, the paved width of Factory Street, and the fireplug on the south side of Factory Street near the intersection and about 25 to 28 feet from the center of the intersection. When he got there plaintiff was standing on Factory Street and Mrs. Boulerice was still in the car, and her arms seemed to be pinned outside of the car against the ditch bank. Mrs. Boulerice stated she was headed east on Factory Street and when she came to the intersection of Factory and Fleetwood Streets a green and white Ford came out of Fleetwood Street at a rapid rate of speed and caused her to lose control of the car, and she went over to the right side of the street and back over to the left side and turned over in the ditch. Later in the day he talked to William Leon Hare. Hare stated that during that afternoon he had driven a green and white Ford through the intersection of Fleetwood and Factory Streets. He recalled passing a pink car like the Boulerice car before the accident, but did not recall where he passed it. Mrs. Boulerice did not make any statement to him about her applying brakes prior to striking the ditch. He did not see any marks on the paved portion of Factory Street at all. We summarize Gurganus's testimony for the reason that plaintiff in her brief as appellee stresses the testimony of Gurganus under her discussion of careless and reckless driving of Cecelia W. Boulerice, and states this:
'The plaintiff alleged and offered evidence, as hereinabove set forth, which was corroborated by the witness Gurganus, that the defendant Cecelia Boulerice operated said automobile in such a manner as to negligently and carelessly cause the injuries to the plaintiff and the defendants Boulerice offered no evidence in contradiction thereof.'
This is a brief summary of the evidence of defendants Hare: William Leon Hare, who is a white man, testified in substance: On the day in question about 2:15 p.m. he drove his father's green and white Ford automobile into and through the T-intersection of Factory Street and Fleetwood Street in Elizabeth City when no other automobile was in it or approaching it. He did not pass the Boulerice car at the intersection. Before then he had seen the Boulerice car on several occasions. He did not see the Boulerice car until about an hour later when he returned home. He then saw it in the ditch on its side, and there was no one in the automobile.
Elliott Ward testified in substance: He is a mail carrier in Elizabeth City. In delivering mail on 17 July 1962, he noticed an automobile in a ditch, and two ladies were in the car and two men were giving assistance. He assisted in getting Mrs. Boulerice out of the car. She hold him a colored man came across the road and caused her to run into the ditch. He did not ask her what caused her to go in the ditch: she volunteered the statement.
Mrs. Delores Hare, who is now the wife of Leon Hare and was his financee on 17 July 1962, testified in substance: On 17 July 1962 she was in the automobile driven by Leon Hare. When the automobile approached the intersection of Factory and Fleetwood Streets, they waited for a car to pass them. They were at a standstill when this car passed by. Mrs. Boulerice was not driving that automobile. After that automobile passed them, it continued on down Factory Street and did not go into a ditch. This was a little after 2 p.m. About an hour later they came back to the Hare house and saw an automobile in the ditch. No one was in it, but persons were standing nearby.
William Thomas Felton testified in substance: He did not see the accident and does not know how long the Boulerice car had been in the ditch when he saw it. The first time he saw Leon Hare that day, he was standing in his yard. He came over to him after he had driven up into the driveway and asked him what had happened. That was after plaintiff and Mrs. Boulerice had been taken away from the automobile in the ditch.
Mrs. Cassie McLawhorn testified in substance: She was in the living room of her house, which faces Fleetwood Street. She heard 'a slam,' and saw the Boulerice car going over. She did not see any other car at this intersection. She saw Leon Hare leaving his house driving his father's car. It was a good while before she saw the car turning over in the ditch. The green and while Ford owned by Leon Hare's father was not parked beside his house at any time within ten minutes prior to the time she saw the car going over into the ditch. She does not know what actually happened before the Boulerice car went into the ditch.
Joseph Roughton testified in substance: He was sitting on his front porch. The first thing he knew about the accident, he saw this car going by and right along there by the fireplug it looked like it swung off to the left and went into the ditch. He did not see the Hare car anywhere around the intersection
A close study of plaintiff's evidence in the record in the instant case, which is admitted by all parties to be substantially similar to the evidence stated in the opinion on the first appeal, considered in the light most favorable to plaintiff and giving to her the benefit of every reasonable inference to be drawn therefrom, tends to show the following: About 2:15 p.m. on 17 July 1962 plaintiff was a passenger in the Boulerice car driven by Cecelia W. Boulerice, her daughter. This car was headed in an easterly direction on Factory Street and approaching the intersection of Factory and Fleetwood Streets. It was traveling at a speed of about 25 miles per hour. As the Boulerice car entered the intersection, a Ford automobile, driven by William Leon Hare and owned by his father Robert E. Hare, came out of Fleetwood Street, entered the intersection, turned to its right in the intersection, and headed towards Parsonage Street. The two automobiles came very close together when they passed, but did not strike or collide. Confronted with this sudden emergency, the driver of the Boulerice car pulled it to its right to avoid the Ford automobile hitting it. Then a fireplug was so close the Boulerice car cut back to the left and went across the street and turned over in a ditch about 6 feet deep and five to six feet across the top. Considering plaintiff's evidence as we are required to do in considering a motion for judgment of nonsuit, it is our opinion, and we so hold, that plaintiff has adduced no evidence at all tending to show that Cecelia W. Boulerice was guilty of careless and reckless driving in violation of G.S. § 20--140. State v. Simmons, 240 N.C. 780, 83...
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