Williams v. McSwain
| Decision Date | 19 March 1958 |
| Docket Number | No. 171,171 |
| Citation | 248 N.C. 13,102 S.E.2d 464 |
| Court | North Carolina Supreme Court |
| Parties | Earl WILLIAMS, Administrator of the Estate of Robert Earl Williams, Deceased, v. Fulton McSWAIN, Carl Jessup, Harry Womble and Jack Womble. |
Hester & Hester, Elizabethtown, Nance, Barrington & Collier, Rudolph G. Singleton, Jr., Fayetteville, for defendant-appellants.
Butler & Butler, Clinton, for plaintiffappellee.
Upon the conclusion of plaintiff's evidence, defendants made appropriate motions to nonsuit, electing not to offer any evidence. Their motion was overruled. The exception then taken is here urged as a ground for reversing the judgment.
The evidence on which plaintiff relies to support the verdict comes almost entirely from admissions made in the answers of defendants. The facts disclosed by the evidence may be summarized as follows:
Robert Earl Williams, plaintiff's intestate, his eighteen-year-old son, finished high school in July 1954. He was a healthy, smart, and intelligent boy, six feet one inch in height, and weighed 160 pounds. On the forenoon of Sunday, 25 July 1954, he was swimming in White Lake. He died as a result of injuries sustained when struck by the propeller of a motorboat. White Lake, one of the 'Carolina bays,' is owned by the State, G.S. § 146-7, operated as one of the State's parks pursuant to G. S. § 113-8. The Department of Conservation and Development, acting under G.S. § 146-8, promulgated regulations applicable to White Lake. The regulations, after reciting the statutory authority under which they were promulgated, recite:
Defendants Womble owned property on the lake known as Goldston's Beach. There they operate certain concessions including a bathhouse. They rent dressing rooms and bathing suits to patrons. Goldston's Beach is a popular resort having a large patronage. Defendants Womble, under permit from the Department of Conservation and Development, have erected and maintained a pier into the lake. The lake is much used for swimming and boating.
Defendant McSwain is the owner of a motorboat which was, in July 1954, operated for him by defendant Jessup. This boat is used to transport passengers on the lake. Defendants Womble permitted McSwain to dock his boat at their pier to receive and discharge passengers. For the exercise of this privilege McSwain paid Womble 25% of the gross revenue from the operation of his boat. There were no signs on the Womble pier announcing the fact that motorboats docked there.
Other beaches and concessions were operated by owners of other properties fronting on the lake. Some of these beaches and concessions adjoined the property of the defendants Womble.
Among the regulations issued by the Department were Nos. 20, 21, and 22, which provide:
Plaintiff alleged: About 10:00 a. m. on 25 July 1954 his intestate was swimming at Goldston's Beach 'in an area between the pier and buoys erected by the North Carolina Department of Conservation & Development and designated as a swimming area by the defendants when and where a Criss (sic) Craft Motor boat owned by Fulton McSwain, and operated by Carl Jessup, an employee of defendants, with paying passengers thereon and while in the regular course and scope of his employment as driver of said commercial motor boat and as a common carrier, hauling passengers for hire, ran into plaintiff's intestate, striking him with the propeller and killing him. ' (Italics supplied.)
McSwain, answering this allegation of the complaint, admitted: 'Robert Earl Williams was swimming in the waters of White Lake in an area between the Goldston Pier and buoys placed and maintained by the North Carolina Department of Conservation and Development, and that while so doing he was struck by a motor boat owned by Fulton McSwain and operated by Carl Jessup. ' Except for the admission thus made, the quoted allegation of plaintiff was denied by McSwain. Defendants Womble admitted: 'Robert Earl Williams was swimming in the waters of White Lake in an area between the pier erected by these answering defendants under permit with the North Carolina Department of Conservatio and Development and near buoys which had been erected and which were maintained by the North Carolina Department of Conservation and Development and that while so doing he was struck by a motor boat operated by Carl Jessup. * * * ' Otherwise the defendants Womble denied the quoted allegation of plaintiff.
Plaintiff alleged and defendants admitted that they had not roped off or marked by buoys or otherwise any route for boats to use in approaching or leaving Womble's pier. Regulation No. 32, promulgated by the Department, prohibits the erection of any structures or buoys except upon the issuance of a permit by the Department. The complaint alleges and the case on appeal states that the deceased was struck by the propeller of the McSwain boat. It is admitted that the injuries thus inflicted resulted in death. The buoys put out by the Department in 1954 were floating barrel type. The buoys were about 75 feet beyond the end of the Womble pier.
The complaint particularizes the negligence of defendants in this manner: (1) Carl Jessup 'proceeded from the pier towards the buoys in a careless, reckless and negligent manner, under the circumstances and without keeping a proper lookout for bathers within the bathing area and with a heedless and wanton disregard of the rights and safety of said bathers'; (2) he was negligent in operating the boat at a speed greater than was reasonable and prudent under the circumstances and conditions then existing and contrary to and in violation of the regulations promulgated by the Department of Conservation and Development; (3) he operated the boat where he well knew bathers were likely to be and were swimming; (4) he operated the boat at a speed and in a manner so that he could not observe swimmers in the water for a distance in which said motorboat could be stopped; (5) he operated the boat without keeping a proper and careful lookout; (6) he was a minor under eighteen years of age, had been operating a boat for two years, defendants knew that he was of a careless and reckless nature, was not mature, and was not a fit and suitable person to operate a commercial speed boat on White Lake; (7) defendants failed to erect signs on the premises warning bathers that boats operated in the swimming area.
The allegations are ample to support the verdict in plaintiff's favor; but it is not sufficient merely to allege...
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