Hanes v. Southern Public Utilities Co., 188 N.C. 465 (1924)

Oct. 29, 1924 · Supreme Court of North Carolina
188 N.C. 465


(Filed 29 October, 1924.)

1. Evidence — Nonsuit.

A motion as of nonsuit should not be granted if tbe evidence, viewed in the light most favorable to the plaintiff, may reasonably be inferred by the jury to sustain his action.

2. Same — Street Railways — Collisions—Negligence—Questions for Jury..

Evidence is sufficient to be submitted for the determination of the jury to recover damages for a wrongful death, against a street car company, which tends to show that its street car struck an automobile and killed one riding therein as a guest, as the automobile was attempting to pass’ another, going in the same direction, and the employees’of. the’-defendant traveling in the opposite direction failed to give signals or warnings of *466the approach of the street car; that the car was traveling at a speed forbidden by the ordinance of the city; and that the servants of the defendant might have avoided the injury in the exercise of ordinary care under the circumstances.

Appeal by plaintiff from Bryson, J., at May Term, 1924, of Foesyth.

Civil action, to recover damages for an alleged negligent injury, resulting in the death of plaintiff’s intestate.

From a judgment of nonsuit, entered at the close of all the evidence, plaintiff appeals.

John 0. Wallace, Richmond Rucker Hastings, and Booe & De-Bose for plaintiff.

Manly, Hendren & Womble, and 8wink, Clement & Hutchins for defendants.

Stacy, J.

This case has been tried twice in the Superior Court of Forsyth County. At the first hearing there was a verdict for the plaintiff, which was set aside by the presiding judge as being contrary to the weight of the evidence. On the second hearing, from which this appeal is prosecuted, there was a judgment as of nonsuit entered at the close of all the testimony. Much evidence was offered tending to show that the injuries and death complained of were the result of an accident, so far as the defendant was concerned, but it is not all one way. Considering the evidence in its most favorable light for the plaintiff, the accepted position on a motion to nonsuit, we think the cause should be submitted to another jury for a determination of the mooted questions of fact raised by the testimony of the several witnesses. Speaking to a similar question in the recent case of Oil Co. v. Hunt, 187 N. C., 157, it was said: “On a motion to nonsuit, the evidence is to be taken in its most favorable light for the plaintiffs, and 'they are entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.’ Christman v. Hilliard, 167 N. C., p. 6.”

There was allegation and evidence tending to show that on 22 November, 1922, Charles D. Hanes was fatally injured in a collision between an automobile, in which he was riding, and one of the defendant’s street cars. The collision occurred on Main Street in the city of Winston-Salem, about 7 a. m. The deceased was going to’ his work and was riding, as an invited guest, in the automobile of one C. 0. Shelton at the time he received the injuries from which he died on the following day.

*467Miss Lola Shelton, a witness for tbe plaintiff, wbo was riding in tbe automobile witb ber brother and tbe deceased at tbe time of tbe injury, testified, in .part, as follows: “We were coming over tbe top of tbe bill at Centerville Store about 7 o’clock, and Mr. Hanes, tbe deceased, was standing on tbe side of tbe street, and my brother asked him if be wanted to go to town. He said 'Yes,’ and my brother stopped tbe car, and Mr. Hanes got in tbe rear seat, and we started to town. When we got down almost to tbe bottom of Salem Hill, and about tbe middle of tbe block, there was a truck in front of us, and it kind of slowed up, and my brother started to pull out to go around tbe truck, and when be got on tbe car track I saw tbe street car coming. After we got on tbe track, tbe rear end of tbe street car was just passing Eace Street. We were about tbe middle of tbe block. I judge tbe street car was about 60 or 75 feet from us after we got out on tbe car track. I saw tbe street car just as my brother pulled out from behind tbe truck, and at tbe time we got on tbe track tbe street car was as far from us as from where I am sitting to tbe corner of tbe courtroom. Tbe truck we passed was going north — tbe same direction we were going. There was a line of cars ahead of tbe truck, also going north. On tbe other side of tbe street, to our left, cars were coming south — a string of cars coming that way. At tbe time I saw tbe street car coming, it was running about 20 miles an hour — coming at a rapid speed. We went around tbe truck. My brother put tbe gas on — speeded tbe engine, to try to get around tbe truck before tbe car got to us, and when be turned off of tbe street-car track tbe street car bit tbe rear door of our car, on tbe left-hand side, and turned tbe car around. When it stopped, tbe rear of tbe car was sitting against tbe curb and tbe front wheels sitting against tbe street car — tbe rear truck of tbe street car. Tbe front end of tbe automobile was standing facing tbe rear truck of tbe street car. It threw my brother out. I saw him fall out, as I was sitting on tbe front seat, beside him. I don’t know whether Mr. Hanes was thrown out, or not, as I didn’t see him go out of tbe car; but when I saw him be was outside of tbe ear, lying witb bis bead against tbe curb, and was unconscious. It battered up our car — almost completely wrecked it; tore both wheels down. I did not bear any gong, or bell, or born, or any warning whatever from tbe street car. I think I was in position to have beard it if there bad been any; I think I could have beard it.”

This evidence, though unsupported, and contradicted in tbe main by other witnesses, is sufficient to carry tbe case to the- jury, especially in view of tbe fact that it is made unlawful by ordinance for tbe defendant to operate its street cars at a rate of speed in excess of 15 miles per hour in tbe residential section of. tbe city, as was tbe case here. .

*468 We are not permitted to pass upon the probable truth of conflicting evidence when considering a judgment of nonsuit. - Our inquiry in such a case is directed to its sufficiency to warrant a verdict in favor of the plaintiff. The jury alone may consider its credibility and determine its weight. Loggins v. Utilities Co., 181 N. C., p. 227.

As to the nonimputability of the negligence of the driver to the passenger or invited guest, under circumstances similar to those here disclosed, see White v. Realty Co., 182 N. C., 536.