Letterman ex rel. Letterman v. Miller, 209 N.C. 709 (1936)

March 18, 1936 · Supreme Court of North Carolina

209 N.C. 709

LOIS LETTERMAN, by Her Next Friend, C. R. LETTERMAN, v. FLOYD MILLER and S. H. MILLER, Trading as ASHEVILLE-OANTON AND WAYNESVILLE MOTOR EXPRESS.

(Filed 18 March, 1936.)

Automobiles C c — Evidence held for jury on issues of negligence and proximate cause in this action to recover for injuries to child struck by truck as she crossed highway to enter automobile.

The evidence tended to show that plaintiff, a child nine years old, and her brother and two sisters, neither of whom was over fourteen years old, were walking to school along the highway, that a neighbor, riding his child to the same school, slowed down and stopped his car on the opposite side of the highway to give plaintiff and her brother and sisters a ride to school in his car, that the driver of defendants’ truck, driving behind the car and going in the same direction, slowed down when the car slowed down and stopped behind it, and that plaintiff, assuming the truck had stopped so she could cross the highway, started across the highway to enter the car, and was struck when the truck driver started forward without warning for the purpose of going around the automobile. Held: The evidence was sufficient to be submitted to the jury on the question of negligence in the operation of the truck and proximate cause, notwithstanding defendants’ evidence to the contrary.

Stacy, O. J., dissenting.

Appeal by both plaintiff and defendants from Oglesby, J., at December Term, 1935, of Buncombe.

Reversed in plaintiff’s appeal; defendants’ appeal dismissed.

This is an action to recover damages for personal injuries suffered by tbe plaintiff, a child nine years of age, when she was struck and knocked down as she started to cross a State highway in Buncombe County, to enter an automobile parked on the opposite side of the highway, by a truck owned by the defendants and negligently operated on said highway by the driver, an employee of the defendants.

The defendants denied that the driver of the truck was negligent in its operation at the time the plaintiff was injured, or if he was negligent, that such negligence was the proximate cause of plaintiff’s injuries.

The action was begun and tried in the general county court of Buncombe County.

The issues submitted to the jury were answered' as follows:

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

“2. What damages, if any, is the plaintiff entitled to recover? Answer : ‘$3,000.’ ”

From judgment that plaintiff recover of the defendants the sum of $3,000, and the costs of the action, the defendants appealed to the Superior Court of Buncombe County, assigning errors in the trial in the general county court.

At the hearings of defendants’ appeal, pursuant to the rulings of the judge of the Superior Court on their assignments of error, it was ordered and adjudged by the court that the defendants are entitled to a new trial, and accordingly the action was remanded to the general county court for a new trial.

From the judgment of the Superior Court both the plaintiff and the defendants appealed to the Supreme Court, each assigning errors in the rulings of the judge on defendants’ assignments of error on their appeal from the judgments of the general county court.

Geo. O. Perkins and J. W. Pless for plaintiff.

Smothers, Martin & McGoy for defendants.

Connor, J.

An examination of the record in this appeal discloses no error in the rulings of the judge of the Superior Court by which certain of defendants’ assignments of error on their appeal from the judgment of the general county court were overruled. There is error, however, in the rulings of the judge by which other assignments of error were sustained, resulting in the order for a new trial. For this reason there is error in the judgment of the Superior Court awarding the defendants a new trial. The judgment of the Superior Court is reversed on plaintiff’s appeal to this Court. The appeal of the defendants is dismissed. The judgment of the general county court should be affirmed.

The only ruling of the judge of the Superior Court at the hearing of defendants’ appeal from the judgment of the general county court which seems to require discussion by this Court is the ruling by which defendants’ contention that there was error in the refusal of the trial court to allow their motion for judgment as of nonsuit, at the close of all the evidence, was not sustained. There was no error in this ruling.

There was evidence at the trial in the general county court tending to show that plaintiff, a child nine years of age, with her brother and two sisters, neither of whom was over fourteen years of age, was walking along the edge of the highway, on her way to school. A neighbor passed in his automobile, taking his child to the same school which the plaintiff and her brother and sisters attended. He indicated to plaintiff that he would take her and her brother and sisters to school in his automobile, and at once began to slow down. He stopped his automobile about thirty feet from the plaintiff, on the opposite side of the highway. At this time, defendants’ truck was approaching, going in the same direction as the automobile. When the driver of the truck saw that the automobile was slowing down, lie slowed down, and when tbe automobile stopped, be stopped, a short distance in tbe rear of tbe automobile. Tbe plaintiff, assuming tbat tbe truck bad stopped so tbat sbe could cross tbe highway and enter tbe automobile in safety, took a step in tbe direction of tbe parked automobile. At tbis moment, without warning, tbe driver of tbe truck started up and turned toward tbe plaintiff for tbe purpose of going around tbe automobile. In tbis situation tbe plaintiff was struck and knocked down by tbe truck, and thereby suffered serious injuries which are probably permanent.

Tbis evidence was properly submitted to tbe jury as tending to show, notwithstanding tbe evidence for tbe defendants to tbe contrary, tbat tbe driver of tbe truck was negligent, and tbat bis negligence was tbe proximate cause of plaintiff’s injuries. See Smith v. Miller, ante, 170.

Tbe action is remanded to tbe Superior Court of Buncombe County tbat judgment may be entered in said court affirming tbe judgment of tbe general county court of Buncombe County.

Reversed in plaintiff’s appeal.

Defendants’ appeal dismissed.

Stacy, O. J.,

dissenting: Unfortunate and distressing as tbe accident in tbis case was, a careful perusal of tbe record leaves me with tbe conviction tbat no actionable negligence on tbe part of tbe defendants has been shown.

Tbe little girl ran into tbe side of tbe truck, as witness tbe following from her own evidence: “Tbe truck bit her on top of tbe bead. . . . Tbe front corner of tbe bed bit her. . . . Sbe stepped one step, just a side step. Sbe was struck straight in tbe back of tbe bead. . . . If sbe bad stood still sbe would not have been bit. . . . Q. What part of tbe truck bit her % A. Tbe corner of tbe front of tbe bed. After sbe fell forward, tbe bind wheel of tbe truck ran over her leg.” Tbis means tbe bumper, tbe fender, tbe front wheel, and tbe cab of tbe truck bad safely passed where tbe children were standing before tbe plaintiff took her “one step, just a side step,” and was struck by tbe corner of tbe bed of tbe slowly moving truck. It was tbe rear wheel, and not tbe front wheel, tbat crushed her leg. Her companions were not hurt. These physical facts permit no inference of negligence on tbe part of tbe driver of tbe truck. He did not know tbe children were waiting to cross tbe road, as was tbe ease in Smith v. Miller, ante, 170. Reasonable prevision or foresight, and not tbe gift of prophecy or clairvoyance, is all tbe law required of him. Osborne v. Coal Co., 207 N. C., 545, 177 S. E., 796. “Tbe law does not require omniscience” — Brogden, J., in Gant v. Gant, 197 N. C., 164, 148 S. E., 34.

Wien tie plaintiff fell, sbe was “4 or 4% feet inside tie curbing.” Tbis would indicate that sbe necessarily took more than “one little step” before coming in contact with tie truck, but tbis is not tie determining factor.

Under tie law as heretofore written, tie plaintiff is not entitled to recover. Tie case is no stronger than Fox v. Barlow, 206 N. C., 66, 173 S. E., 43, where a nonsuit was ordered.