Woods v. Freeman

• Decision Date: 23 March 1938
• Docket Number: 162.
• Citation: 195 S.E. 812,213 N.C. 314
• Parties: WOODS v. FREEMAN.
• Court: North Carolina Supreme Court

195 S.E. 812

213 N.C. 314

WOODS v. FREEMAN.

No. 162.

Supreme Court of North Carolina

March 23, 1938

Appeal from Superior Court, Henderson County; Felix E. Alley, Judge.

Action by Mrs. Erie M. Woods against George Freeman to recover compensation for personal injuries allegedly sustained as proximate result of the negligent operation of a truck being driven by an employee of the defendant. From a judgment in favor of the plaintiff, the defendant appeals.

New trial.

Where court had previously instructed jury that, before plaintiff could recover, it must appear that negligent act of defendant, if any, was proximate cause of injury, a charge that authorized jury to find defendant liable for plaintiff's injuries, if his truck was traveling at speed in excess of that permitted by statute, was not erroneous considered contextually, for failing to properly state the law in respect to proximate cause. Pub.Laws 1935, c. 311.

This is a civil action instituted by the plaintiff to recover compensation for personal injuries she alleges she sustained as the proximate result of the negligent operation of a truck being driven at the time by the agent and employee of the defendant. The defendant admits that M. J. Taylor on August 29, 1936, at the time of the collision complained of, was operating defendant's truck as defendant's agent servant, and employee, within the scope of his authority.

The plaintiff was a passenger upon an automobile being operated by Mrs. E. M. Jarrett. The automobile was being driven in a northerly direction on the Hendersonville-Asheville highway and was approaching the village of Fletcher. The truck of the defendant was being operated in the opposite direction and had just passed through said village.

As the automobile approached the point of the collision the driver observed two men, on the shoulder of the road on her left-hand side, fighting, and one of the men suddenly quit the combat and ran out into the road. Mrs. Jarrett immediately turned her car to the right and stopped, with the car partly on the shoulder. The driver of the truck, who was coming from the opposite direction, turned his car to the left when the man ran into the road and drove the truck into the car, inflicting certain personal injuries upon the plaintiff.

The plaintiff's car had just passed a slight curve and the truck had just passed a curve about 75 yards back and had also driven some distance beyond the restricted speed limit section of Fletcher. At the point of collision the road was straight for some distance in each direction. The plaintiff alleges that defendant's agent was an incompetent driver and not capable of performing the duties assigned to him as a truck driver, to the knowledge of the defendant, and that said agent was negligent in that he was operating the truck in a reckless and negligent manner at an excessive speed and in utter disregard of the rights, lives, and safety of the plaintiff or other persons.

At the conclusion of plaintiff's evidence the defendant moved to dismiss as of nonsuit. The motion was overruled and the defendant excepted. The defendant, having offered no evidence, the usual issues of negligence and damage were submitted to and answered by the jury in favor of the plaintiff. Upon the coming in of the verdict judgment was entered thereon and the defendant excepted and appealed.

R. L. Whitmire, of Hendersonville, for appellant.

M. F. Toms and A. J. Redden, both of Hendersonville, for appellee.

BARNHILL Justice.

The defendant, upon this appeal, presents but two questions: (1) Did the court err in overruling defendant's motion as of nonsuit? (2) Was there error in the charge on the first issue?

The defendant alleged and contended that one of the men fighting on the shoulder of the road suddenly ran out into the highway and immediately in front of the defendant's truck just as his truck and the car occupied by the plaintiff were meeting on the highway and that this created a sudden emergency; that the driver being suddenly confronted with a perilous and dangerous situation, and with no time in which to think suddenly turned the truck to the left of the highway in an effort to avoid hitting and killing a man in the road, resulting in a collision between the truck and the car. He alleges and contends that this was an unavoidable accident, not produced by any negligent or wrongful act of the driver of the truck. The plaintiff's testimony tends strongly to support the defendant's allegation and to exculpate the defendant's agent from any negligent or wrongful act. She testified: "When he swerved from his side into us his car was at least five feet in front of us. * * When I first saw it coming, the truck was on its right side of the road and remained on its right side of the road until this man suddenly ran out into the highway. * * * When the two cars were about to pass one of these men dashed out into the highway and the other man stayed on the shoulder, which was to the right of the truck. The other man who stayed on the shoulder, which was to the right of the truck, was standing on the shoulder about two or three feet off the pavement. * * * It happened very suddenly. As a matter of fact, the man ran out into the highway and the truck swerved to the left and our car swerved to the right almost at the same time; these things happened almost at the same time. * * * The truck swerved to the left and our car swerved to the right and that all three of these things happened about the same time." Accepting this testimony as a true picture of the occurrence it would seem...