Morris v. Johnson, 214 N.C. 402 (1938)

Nov. 9, 1938 · Supreme Court of North Carolina

214 N.C. 402

MRS. LILLIE MORRIS, Administratrix of C. OSCAR MORRIS, Deceased, v. C. M. JOHNSON.

(Filed 9 November, 1938.)

1. Automobiles § 12a—

Evidence of speed in excess of the statutory limits is prima facie evidence that the speed is unlawful, and therefore constitutes prima facie evidence of negligence. Public Laws of 1935, ch. 311, sec. 2.

2. Automobiles § 18g—

A prima facie showing of negligence in operating an automobile at a speed in excess of the statutory limits carries the case to the jury in the absence of evidence establishing contributory negligence as a matter of ' law.

8. Trial § 24—

Ordinarily, a prima facie showing carries the case to the jury for it to say whether or not the necessary facts have been established.

4. Automobiles § 25 — Evidence held sufficient for jury under family car doctrine.

Evidence that title to a car was taken in the trade name of defendant’s business, but that his wife and daughter habitually used the car, and did not customarily use any other car, and that at the time of the accident in suit defendant’s daughter was driving the car with his consent, is held, sufficient to be submitted to the jury on the issue of defendant’s liability for the daughter’s negligent driving under the family car doctrine.

Appeal by plaintiff from Harris, J., at February Term, 1938, of JohNstoN.

Reversed.

Civil action to recover damages for the wrongful death of plaintiff’s intestate alleged to have been caused by the negligent operation of an automobile by defendant’s daughter.

About 5 p.m., 30 December, 1936, plaintiff’s intestate alighted from a truck which stopped on the east shoulder of State Highway No. 22 at Bill’s Service Station between Smithfield and Selma. He then walked diagonally in a southwesterly direction across the hard surface road toward bis truck, wbieb was parked west of said bigbway. Just as be reached tbe western edge of tbe paved surface of tbe road be was struck by an automobile being driven in a southerly direction by defendant’s daughter and was carried some distance down tbe road. He died from the injuries received. One witness testified: “It was going fast, probably sixty or seventy miles per hour, just like tbe wind.” The deceased was carried about 75 feet down tbe road and tbe automobile traveled some distance after be was thrown or fell from tbe front of tbe car. There is other evidence to like effect.

• Tbe evidence likewise discloses that tbe defendant conducts a laundry under a trade name; that tbe title to tbe automobile is in tbe trade name of tbe defendant’s business; that defendant’s wife uses tbe car for business, shopping, collecting, etc.; that defendant’s daughter drives tbe car with tbe consent of her mother and that she was operating tbe car at tbe time of tbe accident with tbe consent of tbe defendant. Defendant’s wife and daughter are not accustomed to driving any other car owned by tbe defendant.

At tbe conclusion of plaintiff’s evidence, on motion of tbe defendant, tbe action was dismissed as of involuntary nonsuit. Plaintiff excepted and appealed.

W. I. Godwin and L. L. Levinson for plaintiff, appellant.

Abell & Shepard for defendant, appellee.

Pee CtjRiam.

Evidence of speed in excess of tbe statutory limits is prima facie evidence “that tbe speed is not reasonable or prudent and that it is unlawful.” Public Laws 1935, cb. 311, sec. 2. It is, therefore, prima facie evidence of negligence. Woods v. Freeman, 213 N. C., 314. A prima facie showing carries tbe case to tbe jury for it to say whether or not tbe crucial and necessary facts have been established; Woods v. Freeman, supra; Cox v. R. R., 149 N. C., 117, 62 S. E., 884; Brock v. Ins. Co., 156 N. C., 112, 72 S. E., 213; unless plaintiff’s evidence is such that tbe conclusion that plaintiff’s intestate was guilty of contributory negligence is tbe only reasonable conclusion to be deduced from tbe testimony. Mulford v. Hotel Co., 213 N. C., 603. If tbe record discloses any evidence of contributory negligence it is not of sufficient probative force to require tbe conclusion as a matter of law that tbe deceased by bis conduct proximately contributed to bis injury and death.

There is likewise sufficient evidence that tbe car driven by defendant’s daughter was in use as a family car to require tbe submission of an appropriate issue thereon.

The judgment below is

Reversed.