Cowper v. Brown, 228 N.C. 213 (1947)

Nov. 19, 1947 · Supreme Court of North Carolina

228 N.C. 213

ALBERT W. COWPER, Administrator d. b. n. of the Estate of PAUL ROUSE, Decesed, v. JESSE G. BROWN and JOHN K. DAWSON, and HENRY BELL, Administrator of the Estate of LEE BELL, Deceased, v. JESSE G. BROWN and JOHN K. DAWSON, and GEORGE ROUSE, a Minor, by His Next Friend, ALBERT W. COWPER, v. JESSE G. BROWN and JOHN K. DAWSON.

(Filed 19 November, 1947.)

Automobiles §§ 15, 181x (3) (3) — Evidence held sufficient ior jury on issue of negligence and not to disclose contributory negligence as matter of law on part of cyclist hit by truck.

Tbe evidence tended to show that defendant driver turned to’ bis left to pass two cars traveling in the same direction and struck two bicycles traveling in single file in tbe opposite direction on their right side of the highway. Defendants’ evidence was that the collision. occurred on the paved portion of the highway and that the bicycles were without lights; plaintiffs’ evidence was to the effect that the bicycles had turned off the highway to their right and were traveling on the shoulder, and that the person riding on the cross-bar of the lead bicycle was holding a lighted flashlight. Defendant driver testified that he did not see the lead bicycle at all and did not see the second bicycle until he was within five yards of it although his lights were in fair condition. Held: Defendants’ motions to nonsuit should have been overruled both in respect to the issue of negligence and the issue of contributory negligence.

Appeal by plaintiffs from Morris, J., at June Term, 1947, of LeNoir. ■

Civil action instituted to recover damages for tbe alleged wrongful death of Paul Rouse and Lee Bell, and damages for personal injuries to George Rouse. The three cases were consolidated for trial.

Paul Rouse and Lee Bell were killed and George Rouse was injured when a truck owned by the defendant, Jesse G. Brown, and driven by his codefendant, John K. Dawson, collided with the bicycles on which Paul Rouse, Lee Bell and George Rouse were riding. The collision occurred between 5:30 and 6:00 p.m., 8 January, 1947, on the highway leading from Kinston to Pink Hill by way of Caswell Street Bridge.

According to the evidence offered in the trial below, Paul Rouse and Lee Bell were both riding the leading bicycle, and George Rouse was riding singly and following behind the other boys about the length of the bicycle. The boys were proceeding westwardly from Kinston, on the paved highway about 5 :30 in the afternoon, riding on their right-hand side of the paved portion of the highway, near the right edge of the pavement. Lee Bell was riding on the cross-bar of the leading bicycle, and was holding in his hand a lighted flashlight; and as the boys observed two oars and a truck meeting them, they turned off tbe paved portion of the road to their right and were proceeding on the shoulder of the road “about 2 to 2% feet” from the pavement. The driver of defendant’s truck, in attempting to pass the two automobiles, drove his truck over on the left side of the highway and off the paved portion thereof onto the shoulder along which the boys were riding. The truck and the bicycles collided, resulting in the death of Paul Rouse and Lee Bell, and the serious injury of George Rouse. The body of Paul Rouse was knocked about 50 feet from the point of impact and the body of Lee Bell ivas thrown over the cab of defendant’s truck and fell in the back of the truck.

The defendant Dawson testified he was driving about 35 miles an hour ■when he started to pass ah automobile just before the collision; that his lights were fair and his brakes were good, that he could see about 150 feet ahead of him, but he did not see the bicycle on which Paul Rouse and Lee Bell were riding, until he was about 5 yards from it, and never did see but one bicycle and one boy. He further testified: “When you pull out from a car in front your lights don’t shine down the highway then; and by the time my lights came back on the highway there were those boys; I didn’t go completely off the highway. As I turned to the left I could see not over 15 or 20 feet down the highway. . . . You could see a human being 25 feet; that was as far as I did see him with my lights as they were that night. I could see 50 feet if I had had the bright lights on, I must have had the dim lights on.” Defendant offered evidence tending to show the collision took place on the paved portion of the road and that the bicycles were not lighted. .

At the close of the evidence offered in behalf of the respective plaintiffs, the defendants moved for judgment as of nonsuit. The motion was denied, but upon renewal of the motion at the close of all the evidence, the motion was allowed as to each action, and judgment was entered accordingly.

Plaintiffs appeal, assigning error.

J. A. Jones for plaintiffs.

Sutton & Greene for defendants.

DeNNY, J.

The evidence offered by the respective plaintiffs in the trial below is sufficient to carry these cases to the jury on the issues of defendants’ alleged negligence. Phillips v. Nessmith, 226 N. C., 173, 37 S. E. (2d), 178; Wall v. Bain, 222 N. C., 375, 23 S. E. (2d), 330; Pearson v. Luther, 212 N. C., 412, 193 S. E., 739; Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601.

The defendants contend that if it be conceded that the defendant Dawson was operating the truck of his codefendant in a negligent manner at tbe time of tbe collision referred to herein, these plaintiffs are not entitled to recover as a matter of law, by reason of tbe contributory negligence of George Rouse and tbe intestates as shown by tbe evidence.

Conceding, but not deciding, that there is evidence of contributory negligence on tbe part of George Rouse and tbe intestates, it is not of such a character as would justify bolding it to be so as a matter of law. Tbe evidence offered on this -record justifies tbe conclusion that these cases should be submitted to tbe jury on tbe proper issues raised by tbe pleadings. Wall v. Bain, supra; Manheim v. Blue Bird Taxi Corp., 214 N. C., 689, 200 S. E., 682; Pearson v. Luther, supra.

Tbe judgment of tbe court below is

Reversed.