Williams v. Henderson

• Decision Date: 12 October 1949
• Docket Number: 166
• Citation: Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462 (N.C. 1949)
• Parties: WILLIAMS v. HENDERSON.
• Court: North Carolina Supreme Court

55 S.E.2d 462

230 N.C. 707

WILLIAMS v. HENDERSON.

No. 166

Supreme Court of North Carolina

October 12, 1949

Civil action to recover damages for wrongful death.

The evidence considered in the light most favorable to plaintiff tends to establish the following facts:

Deceased lived on the north side of Highway 64 east of Hendersonville.On November 17, 1947, she left her home to go to her mail box located on the southern edge of the highway.As she crossed the highway, two heavily loaded oil trucks belonging to defendant were approaching from the west, traveling about 45 or 50 miles per hour.The second or rear truck was being operated by defendant.The first truck passed deceased.As the second truck approached, deceased was standing at the mail box on the shoulder of the road, apparently oblivious of the approach of the second truck.When this truck was within 15 or 20 feet of deceased, she turned suddenly and 'started back across the highway in a fast walk. 'Defendant swerved his truck to the left in an attempt to avoid striking her but the rear-view mirror located on the right side struck her head and her body struck the corner of the truck to the rear of the cab.

She was thrown 112 feet down the road and fell on the right-hand shoulder of the road.The truck traveled 250 feet--to the left of the shoulder then to the right--before it stopped.Glass from the rear-view mirror and fragments of paint were scattered on the pavement not more than 12 inches from the southern edge of the pavement.The road was straight in each direction so that each could have seen the other for a considerable distance.As defendant approached the mail box he did not sound his horn or slacken his speed.He said he was too close to the other truck to see her until he was within just a few feet of her.When he first saw her, she was at the mail box with her back to the road.

When the plaintiff rested, the court, on motion of defendant entered judgment of nonsuit and plaintiff appealed.

Arthur J. Redden, Hendersonville, W. Roy Francis, Waynesville Smathers & Meekins, Asheville, for plaintiffappellant.

R. L Whitmire, Hendersonville, for defendantappellee.

BARNHILL Justice.

A motorist operates his vehicle on the public highways where others are apt to be.His rights are relative.Should he lapse into a state of carelessness or forgetfulness his machine may leave death and destruction in its wake.Therefore, the law imposes upon him certain positive duties and exacts of him constant care and attention.He must at all times operate his vehicle with due caution and circumspection, with due regard for the rights and safety of others, and at such speed and in such manner as will not endanger or be likely to endanger the lives or property of others.G.S. s 20-140;Kolman v. Silbert,219 N.C 134, 12 S.E.2d 915.

He must operate his vehicle at a reasonable rate of speed, keep a lookout for persons on or near the highway, Cox v. Lee,230 N.C. 155, 52 S.E.2d 355 decrease his speed when any special hazard exists with respect to pedestrians, G.S. s 20-141(c), and, if circumstances warrant, he must give warning of his approach by sounding his horn.G.S. s 20-174(e);Williams v. Woodward,218 N.C. 305, 10 S.E.2d 913;Parr v. Peters,159 Md. 106, 150 A. 34;Southeastern Telephone Co. v. Payne,253 Ky 245, 69 S.W.2d 358.

While a driver of a motor vehicle is not required to anticipate that a pedestrian seen in a place of safety will leave it and get in the danger zone until some demonstration or movement on his part reasonably indicates that fact, Tysinger v. Coble Dairy Products,225 N.C. 717, 36 S.E.2d 246, he must give warning to one on the highway or in close proximity to it, and not on a sidewalk, who is apparently oblivious of the approach of the car or one whom the driver in the exercise of ordinary care may reasonably anticipate will come into his way.Trainor's Adm'r v. Keller,257 Ky. 840, 79 S.W.2d 232.

It is his duty to sound his horn in order that a pedestrian unaware of his approach may have timely warning.If it appears that the pedestrian is oblivious for the moment of the nearness of the car and of the speed at which it is approaching, ordinary care requires him to blow his horn, slow down, and, if necessary, stop to avoid inflicting injury.Walmer-Roberts v. Hennessey,191 Iowa 86, 181 N.W 798;Quinn v. Heidman,157 Minn. 129, 195 N.W. 774;Olsen v. Peerless Laundry,111 Wash. 660, 191 P. 756;McKinney v. Bissel, Mo.App.,...