Readling v. Town of Cornelius, 208 N.C. 218 (1935)

May 1, 1935 · Supreme Court of North Carolina

208 N.C. 218

J. B. READLING, Executor of H. H. HOBBS, Deceased, v. TOWN OF CORNELIUS, NORTH CAROLINA.

(Filed 1 May, 1935.)

Municipal Corporations E c — Held: Evidence failed to show causal connection between injury and town’s failure to have street lights burning.

Evidence tending to show that plaintiff’s testate was crossing a street diagonally near an intersection as it was getting dark, and that he was struck and killed by an automobile which was running twenty miles an hour with its headlights burning, and that shortly after the accident defendant town turned on its street lights, is held insufficient to show a causal connection between the failure of defendant town to turn on its street lights earlier and the accident in suit, and a directed verdict in favor of defendant town was not error, there being no evidence of any defect in the street.

Appeal by plaintiff from Sink, J., and a jury, 4 September Regular Term, 1934. From Meciclenburg.

Affirmed.

This is an action, brought by plaintiff against the defendant, for actionable negligence. H. H. Hobbs, plaintiff’s testate, was killed about 7 o’clock on 27 September, 1932, by being struck by a Chevrolet coach automobile driven by one Little on the paved portion of the highway, which was 18 feet wide, on Catawba Avenue, in the town of Cornelius. Little was driving west about 15 or 20 miles an hour, with lights burning on his car. The weather, at the time, was foggy and misty. It was getting dark. Hobbs was going in a northwest direction from Puckett’s Store, which is located on the south side óf Catawba Avenue, in the business section, about 75 or 100 yards from a street intersection. About the middle of the front of the car struck Hobbs on his right side.

C. A. Webster, a witness for plaintiff, testified in part: “There are two or three places for. the people of Cornelius to pass Catawba Avenue. Mr. Hobbs was going toward one of the places or paths that lead to his house when he was stricken. He had not got across the road far enough to get in that path, but there was a path opposite this place. Mr. Hobbs was crossing Catawba Avenue at a northwest angle. He did not go straight across the road. I didn’t see him look anywhere as he crossed the road. He walked like he was in a hurry. He always walked that way. He held his head stooped a little. Mr. Hobbs was two-thirds of the way across the street, walking in a northwest direction, at the time he was stricken. He was walking at an angle to the ear that struck him. His back was more to the automobile than if he had been walking straight across. I did not bear a born blown. Tbe car tbat struck bim was traveling not more tban 20 miles an bour. It bad its lights burning. When be got to tbe street, be just walked on out across tbe street.”

Near where Hobbs was struck, there was a street light, but it was not burning. Matches were struck to see whether Hobbs was hurt or bleeding — “Then tbe street lights came on” — also a flashlight was used. Hobbs’ body was lying between 8 and 10 feet under tbe street light and about 2 feet from tbe edge of tbe concrete on tbe north side of tbe street. There was no defect in tbe street. Hobbs was 81 years of age and was employed by tbe Cornelius Cotton Mill and worked regularly.

Tbe court below instructed tbe jury as follows: “Tbe plaintiff having rested its cause of action, tbe defendant having rested, prays tbe court to instruct you, and tbe court does instruct you, if you find all tbe evidence favorable to tbe plaintiff to be true, tbe court instructs you tbat even then tbe plaintiff would not be entitled to recover, and it is your duty to answer tbe first issue, which reads as follows: ‘Was tbe death of tbe plaintiff’s testate caused by negligence of defendant, as alleged in tbe complaint?’ Tbe jury answered tbe issue No.’ ”

Judgment was rendered by tbe court below on tbe verdict. To tbe foregoing instruction, and tbe signing of tbe judgment, tbe plaintiff excepted and assigned error and appealed to tbe Supreme Court.

Hugh G. Mitchell and Z. V. Turlington for plaintiff.

Guy T. Garsiuell and Joe W. Ervin for defendant.

Pee. OueiaM.

From tbe entire evidence in this case, we think tbe court below correct in tbe charge. Tbe evidence indicates tbat plaintiff’s testate was crossing Catawba Avenue in tbe town of Cornelius, not at an intersection and in a burry, without looking, bis bead stooped. Tbe car tbat struck bim bad its lights burning. Tbe fact tbat tbe defendant so early in tbe evening bad not turned on the lights of tbe town bad no causal connection with plaintiff’s testate’s injury. There was no defect in tbe street. We think tbe case of Brady v. Randleman, 159 N. C., 434, is very nearly on “all fours” with tbe present case and sustains tbe charge of tbe court below. We think tbe case of Speas v. Greensboro, 204 N. C., 239, is distinguishable. Tbe judgment of tbe court below is

Affirmed.