Dyke v. Atlantic Greyhound Corp., 218 N.C. 283 (1940)

Oct. 9, 1940 · Supreme Court of North Carolina
218 N.C. 283

R. E. VAN DYKE, Administrator of the Estate of the Late CHARLES VAN DYKE, Deceased, v. ATLANTIC GREYHOUND CORPORATION and L. M. ROBINSON.

(Filed 9 October, 1940.)

1. Appeal and Error § 40e—

On appeal from judgment dismissing tbe action as of nonsuit, tbe Supreme Court will review tbe. evidence tending to support plaintiff’s cause of action and consider it in tbe light most favorable to bim.

2. Automobiles § 18c — Evidence held to disclose contributory negligence as a matter of law on part of cyclist 'turning in front of bus on highway.

The evidence tended to show that intestate was riding a bicycle and that tbe corporate defendant was operating two buses on tbe highway, all three vehicles traveling in tbe same direction, that when tbe first bus approached and started to pass tbe bicycle tbe bus driver blew tbe born •and tbe cyclist turned to his right and rode his bicycle on tbe dirt shoulder, which at that point was about four feet wide, that corporate defendant’s second bus was following tbe first bus at a distance of 100 feet to 100 yards, that the cyclist suddenly and without warning or notice of bis intention to do so, turned to bis left onto tbe bard surface of tbe highway when only about 15 feet in front of tbe second bus, that the driver of the second bus cut sharply to bis left and ran the bus into tbe ditch on tbe left side of tbe highway in an effort to avoid striking tbe cyclist but that tbe right front corner of tbe bus struck tbe bicycle, causing tbe death of the cyclist. The testimony variously fixed tbe speed of the buses at from twenty-five to forty miles per hour, and there was some evidence that tbe second bus did not sound its born until too late. Held: Considering the evidence in tbe light most favorable to tbe plaintiff and conceding that the evidence may tend to show some negligence on the part of the defendants, the evidence discloses contributory negligence on the part of the cyclist as a matter of law, which was the proximate cause or one of tbe proximate causes of tbe accident, and defendants’ motion to nonsuit was properly granted.

8. Automobiles § 9d—

Under our motor vehicle statute-a bicycle is deemed a vehicle, and tbe rider of a bicycle upon tbe highway is subject to tbe applicable provisions of tbe statutes relating to motor vehicles. Public Laws 1939, ch. 275.

4. Automobiles § 18e — Doctrine of last clear chance held not applicable upon the evidence in this case.

Evidence tending to show that a cyclist riding on tbe shoulder of a highway on his right suddenly and without giving notice of bis intention to do so, turned to bis left onto tbe bard surface portion of the highway immediately in front of defendants’ bus, without evidence that tbe driver of tbe bus bad any reason to apprehend that the cyclist was in a position of peril, is insufficient to invoke the doctrine of the last clear chance.

*2845. Negligence § 12—

Where a boy 14 years of age is shown by the evidence to be exceptionally smart, well grown and intelligent for his age, with good hearing and eyesight, he is amenable to the ordinary rules relating to contributory negligence. .

Appeal by plaintiff from Carr, J., at June Term, 1940, of VaNce.


This was an action for damages for wrongful death of plaintiff’s intestate alleged to have been caused by the negligence of the defendants. The defendants denied the allegations of negligence and set up as a further defense the contributory negligence of plaintiff’s intestate. At the close of the evidence, motion for judgment of nonsuit was allowed, and from judgment dismissing the action, plaintiff appealed.

J. P. ds J. H. Zollicoffer, A. A. Bunn, and J. H. Bridgers for plaintiff, appellant.

Douglass & Douglass and Qholson & Gholson for defendants, ap-pellees.

DeviN, ,J.

The principal question presented by this appeal is addressed to the correctness of the ruling of the court below in allowing the motion .for judgment of nonsuit. This renders it necessary to examine the evidence upon which plaintiff’s asserted right to maintain his action depends, and to consider this evidence in the light most favorable for him.

Plaintiff’s intestate, a boy 14 years of age, on the morning of 25 August, 1939, was riding a bicycle on the highway near the corporate limits of the city of Henderson, proceeding eastwardly on the Louisburg Road. The day was clear and the road was level and straight. The defendant, the Atlantic Greyhound Corporation, was operating two large buses on the highway, both proceeding in the same direction as plaintiff’s intestate. The distance between the buses was testified to be 100 feet, though other witnesses estimated this distance at 100 yards. The evidence tended to fix the speed of the buses at from twenty-five to forty miles per hour. Plaintiff’s intestate had delivered a paper to a house on the south side of the highway, and had ridden back to the highway.

As the first or front bus approached plaintiff’s intestate he was riding upon the paved portion of the highway, and when the horn of the bus was sounded he rode off on the shoulder of the highway, which was four and a half feet wide at that point, and was riding three feet from the edge of the pavement. As the second bus, the one following in the rear of the first, approached, plaintiff’s intestate suddenly, and without giving *285any notice of bis intention so to do, turned to bis left on tbe paved portion of tbe road and immediately in front of tbe bus, where be was struck and killed. There was some evidence that tbe bus which struck tbe plaintiff’s intestate did not sound tbe born until too late, and that just as tbe boy came on tbe pavement immediately in front of tbe bus, a distance estimated at fifteen or twenty feet, tbe driver of tbe bus turned sharply to bis left to avoid striking tbe boy, but “tbe extreme right front corner” of tbe bus “mashed in” tbe left side of tbe bicycle, causing tbe death of plaintiff’s intestate. Tbe bus ran off into tbe ditch on tbe left of tbe highway.

One of plaintiff’s witnesses, a highway patrolman, testified that tbe driver of tbe second bus stated be blew bis born “and tbe boy on tbe bicycle suddenly and without any warning cut bis bicycle to tbe left and ran squarely in front of tbe bus. . . . Tbe boy shot directly in front of him (tbe driver of tbe bus) and be could not help it.”

Another witness for plaintiff, an eyéwitness, described tbe accident as follows: “Tbe boy was on tbe dirt shoulder when tbe first bus passed him. Tbe second bus did not blow. . . . Tbe first bus went on by and just as tbe second bus got right close to him, while be was then on tbe shoulder, be cut from tbe shoulder in front of tbe oncoming bus. . . . He ran squarely on to tbe paved highway immediately in front of tbe oncoming bus . . . ran on tbe paved portion of tbe highway right immediately in front of tbe bus when tbe bus was right on him. . . . When tbe boy ran up on tbe paved portion of tbe highway in front of tbe bus (tbe bus) must have been not more than fifteen feet from him. If be bad looked to the left at all before be went on tbe paved highway there was nothing to keep him from seeing tbe bus. . . . It was perfectly apparent to me then that there was no way to keep tbe bus from bitting him when be ran right immediately in front of it.”

Another witness testified that tbe bus was traveling at tbe rate of thirty-five miles per hour, and that tbe bus struck tbe bicycle from tbe rear and tbe boy fell toward tbe center of tbe road. This witness could not say in which direction tbe boy was going, as be saw tbe boy, tbe bicycle and tbe bus at tbe same time, just as tbe bus was striking him.

It was also in evidence that plaintiff’s intestate was an unusually smart boy, well grown for bis age, highly intelligent, bis bearing and eyesight good, that be was very active and “very quick in mind.”

While tbe testimony relating to this unfortunate occurrence, taken in tbe light most favorable for tbe plaintiff, might tend to show some negligence on tbe part of defendants, a careful consideration of all the evidence offered by plaintiff leads us to tbe conclusion that tbe failure of plaintiff’s intestate to exercise due care and precaution for bis own *286safety must be beld to constitute tbe sole proximate cause, or at least a proximate contributing cause, of bis injury and death. There was no evidence which would permit an inference other than that the boy, without signal or warning, and apparently without looking or seeing the oncoming bus, turned suddenly in front of the bus at a time when, in spite of the efforts of the driver, it was too late to avoid striking the bicycle. There are no circumstances here which would relieve the plaintiff’s intestate of the conclusive imputation of contributory negligence. Butner v. Speas, 217 N. C., 83; Smith v. Sink, 211 N. C., 725, 192 S. E., 108; Williamson v. Box Co., 205 N. C., 350, 171 S. E., 335; Tart v. R. R., 202 N. C., 52, 161 S. E., 720; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Meredith v. R. R., 108 N. C., 616, 13 S. E., 137.

It will be noted that under our motor vehicle statutes a bicycle is deemed a vehicle, and the rider of a bicycle upon the highway is subject to the applicable provisions of the statutes relating to motor vehicles. Public Laws 1939, ch. 275.

There was no evidence to support plaintiff’s plea seeking to invoke the principle of last clear chance. Morris v. Transportation Co., 208 N. C., 807, 182 S. E., 487; Haynes v. R. R., 182 N. C., 679, 110 S. E., 56. There was no evidence that more than a fraction of a second elapsed after plaintiff turned on to the pavement before the collision between the bus and the bicycle occurred. Nor was there evidence that there was anything to indicate to the driver of defendant’s bus that plaintiff’s intestate was in a position of peril, or that he intended to turn to his left upon the pavement in front- of the bus. Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Sherlin v. R. R., 214 N. C., 222, 198 S. E., 640.

While plaintiff’s intestate was only fourteen years of age, the evidence as to his intelligence and capacity was sufficient to show that he was amenable to the ordinary rule of contributory negligence as a bar to the action. Meredith v. R. R., supra; Baker v. R. R., 150 N. C., 562, 64 S. E., 506; Tart v. R. R., supra; Haynie v. R. R., 206 N. C., 203, 173 S. E., 283.

Plaintiff’s exception to the admission of the answer to a question propounded to one of defendants’ witnesses, brought forward in plaintiff’s assignments of error, cannot be sustained.

We conclude that the judgment of nonsuit entered in the court below should be