Hobbs v. Kirby, 205 N.C. 238 (1933)

Oct. 11, 1933 · Supreme Court of North Carolina

205 N.C. 238

M. E. HOBBS v. D. H. KIRBY and SOUTHERN BISCUIT COMPANY, Incorporated.

(Filed 11 October, 1933.)

1. Trial J> a — On motion of nonsuit all evidence is to be considered in light most favorable to plaintiff.

Upon a motion of nonsuit all the evidence, whether offered by plaintiff or elicited from defendant’s witnesses, is to be considered in the light most favorable to plaintiff, and he is entitled to every reasonable in-tendment thereon and every reasonable inference therefrom. O. S., 567.

2. Automobiles O m — Evidence of defendant’s negligence in driving held sufficient to be submitted to jury.

Evidence tending to show that the rear of plaintiff’s car had passed the center of the intersection of two city streets when it was struck by a car driven by defendant approaching the intersection from plaintiff’s left, that defendant drove his car at a speed greatly in excess of the legal maximum in approaching the intersection and drove down the middle of the street, and that the front of defendant’s car struck the left rear wheel of plaintiffs car, resulting in serious damage to plaintiffs car and injury to plaintiff, and that plaintiff was driving slowly when he entered the intersection, is held, sufficient to overrule defendant’s motion as of nonsuit in plaintiff’s action for actionable negligence.

3. Appeal and Error E h—

Where the charge of the court below is not in the record the charge is presumed to be without error.

Appeal by defendants from F'rizzelle, J., and a jury, at May-June Term, 1933, of WayNE. No error.

Tbe material allegations in tbe complaint are as follows: “That, on or about 22 March, 1932, while tbe plaintiff was driving- bis Chevrolet coupe in a northerly' direction on tbe right-band side of Leslie Street in tbe city of Goldsboro at a point where said Leslie Street intersects with Ash Street; tbat as plaintiff entered said intersection tbe automobile' of tbe defendant, Southern Biscuit Company, Incorporated, operated by tbe defendant, D. EL Kirby, approached from the west on Ash Street in a rapid and reckless manner, and on tbe left-hand side of said street; and as tbe plaintiff sought in every possible manner to avoid a collision, tbe said defendant D. EL Kirby drove tbe automobile of tbe said Southern Biscuit Company, Incorporated, suddenly and violently into tbe rear end of tbe plaintiff’s automobile, throwing- tbe plaintiff so violently against tbe right-band door of bis automobile tbat it broke said door open and threw tbe plaintiff with great force and violence out of said car and eight or ten feet beyond tbe right side thereof, thereby causing tbe plaintiff tbe painful, serious and permanent injuries hereinafter set forth in detail; and tbat tbe car driven by tbe said defendant D. EL Kirby was proceeding at such reckless speed and was driven in such a reckless manner tbat, even after so ejecting tbe plaintiff from bis automobile, tbe said automobile of tbe plaintiff was pushed and thrown by tbe force of tbe defendant’s car up onto tbe sidewalk on tbe east side of Leslie Street and whirled completely around so tbat it remained on said sidewalk facing in a westerly direction, thereby damaging said automobile in tbe manner hereinafter set forth in detail,” etc. Tbe plaintiff further alleged tbat defendant Kirby violated numerous statutes in reference to tbe law of tbe road, and set same forth.

Tbe defendant Kirby denied tbe material allegations of tbe complaint and set up tbe plea tbat plaintiff was guilty of contributory negligence. Tbe defendant admits “Tbat on or about 22 March, 1932, tbe defendant, D. EL Kirby, was driving bis automobile, about tbe business of tbe defendant, Southern Biscuit Company, Incorporated, in an easterly direction along Asb Street in tbe city of Goldsboro, N. C.” Tbis admission was introduced in evidence by plaintiff.

Tbe issues submitted to tbe jury and tbeir answers thereto, were as follows:

“1. Was tbe plaintiff injured by tbe negligence of tbe defendants, as alleged in tbe complaint? Answer: Yes.

2. If so, did plaintiff by bis own. negligence contribute to bis own injury? Answer: No. '

3. Wbat damages, if any, is iffaintiff entitled to recover? Answer: $5,000.”

Tbe court below rendered judgment on tbe verdict. Tbe defendants made numerous exceptions and assignments of error and appealed to tbe Supreme Court.

W. A. Bees and Kermeih G. Royall for plaintiff.

Thos. W. Ruffin for defendants.

Pee OtjbiaM.

At tbe close of plaintiff’s evidence and at tbe close of all tbe evidence, tbe defendants made motions for judgment as in case of nonsuit. Tbe court below overruled these motions, and in tbis we can see no error. Tbe plaintiff’s evidence fully sustained tbe allegations of tbe complaint. It is tbe well settled rule that upon a motion as of non-suit tbe evidence, whether offered by tbe plaintiff or elicited from tbe defendant’s witnesses, is to be considered in tbe light most favorable to plaintiff, and be is entitled to every reasonable intendment thereon and every reasonable inference to be drawn therefrom.

The plaintiff testified, in part: “I eased into tbis street going slow, and looked, that was to my right, and saw nobody and looked down here to my left and saw a man over here. ... I know tbis man was 35 or 40 yards down that street coming up on that side, and when I saw him coming so fast, instead of making my circle and going down I would have met him, and I decided I would go on up to tbe next block and go around that short block and come into town to keep from being in bis way, but I eased on across and when my car was entering up on there, going across, tbis man, if be ever made any turn at all I don’t know it. I kept looking out my window wondering if be ever would turn to bis right, and just as I was entering upon tbis sidewalk on farther side of Asb Street, tbis man came up and ran under the rear end of my car, striking tbe left corner, and I saw my car and beard tbe lick and a great crash, and my car went up ... I believe he was f.0 yards and perhaps more, coming '[lying. I saw that as I was entering the street.”

Fletcher McGlohon testified, in part: "Mr. Hobbs1 car was a little over half way the street on the left-hand side at the lime they struck. The rear of his car had passed the center of the street before they struck. . . . He was beaded north crossing the street; Mr. Kirby’s car was going east; the front part of Mr. Kirby’s car struck Mr. Hobbs’ car. The left-hand back wheel of Mr. Hobbs’ car was struck. Mr. Kirby’s car was about the middle of Ash Street when he hit Mr. Hobbs, going in an easterly direction. After it was struck Mr. Hobbs’ car went over on the sidewalk and hit a telegraph pole and bounced back. It went up on the sidewalk and hit the pole. ... At the time his car was struck Mr. Hobbs was traveling about 15 miles per hour.”

Ardelia Parks testified, in part: “I saw Mr. Hobbs’ car coming. He was driving somewhere about 15 miles an hour, I reckon, very slow. He was coming down Leslie toward Ash Street. I saw the Kirby car coming. When I got to Ash Street, I ran across. I saw Mr. Kirby’s car coming; he was making J±0 to 50 or 60 miles an hour climbing that hill, and I ran across to keep from getting struck. I saw the Kirby car when it struck Mr. Hobbs, because I had just made my escape and turned around to see how quickly he passed. He struck the rear end of Mr. Hobbs’ ear. At the time he struck Mr. Hobbs’ car it had gone very near across the street intersection. Mr. Hobbs’ car climbed the telegraph pole when it was hit, it swung around. It was headed for that lady’s porch when it hit. Mr. Hobbs was lying collapsed in the street, blood just streaming. ... I ran because he was rurming reckless.”

The defendant contended that he was not to blame and was within the law of the road. “I saw that he dashed in front of me all of a sudden. . . . I am a salesman for the Southern Biscuit Company. I was going that morning on a business trip.”

The charge of the court below is not in the record, the presumption is that the court below charged every principle of law applicable to the facts. The question of negligence, contributory negligence and damage were facts for the jury to determine — they decided in favor of plaintiff. In law we find

No error.