Morgan v. Carolina Coach Co., 228 N.C. 280 (1947)

Dec. 10, 1947 · Supreme Court of North Carolina

228 N.C. 280

A. T. MORGAN, Admr., v. CAROLINA COACH CO., et al.

(Filed 10 December, 1947.)

1. Automobiles § 8d—

Tlie slopping of a bus on the right side of the highway on the hard surface to permit a waiting passenger to board the bus is not negligence.

2. Evidence § 20: Trial § 31b: Appeal and Error § 39f—

In a civil action, defendant’s evidence of good character relates only to his ■ credibility as a witness, and an instruction that it might also be considered as substantive evidence for defendant must he held for prejudicial error when it appears that it may have influenced the verdict of the jury.

3. Automobiles §§ 17, 18h (3): Negligence § 12—

A 13-year-old girl alighted from a school bus on a dirt road some 2D feet to the north of its intersection with a highway. A bus of a common carrier, headed west, was standing, with its motor running, on the hard surface on the north side of the highway. In attempting to cross the highway the girl ran back of the bus, and was struck by a car traveling east. Her vision of the car was obstructed by the bus. Held: The 13-year-old child was not guilty of contributory negligence as a matter of law.

Appeal by plaintiff from Pittman, J., at February Term, 1947, of Mooee.

Civil action to recover damages for death of plaintiff’s intestate, alleged to have been caused by the wrongful act, neglect or default of the defendants.

On the afternoon of 1 January, 1945, plaintiff’s 13-year-old daughter was a passenger on a school bus traveling in a westerly direction from Carthage on Highway No. 27. When the driver of the bus reached the end of his westerly run, and where the plaintiff’s daughter was to alight, he turned to his right and drove his bus off the highway and onto a side road (unpaved), as was his custom in turning around at this point. He stopped at right angles with the Highway leaving a space of from 8 or 9 to 10 feet between the rear of his bus and the edge of the hard surface.

A bus of the Carolina Coach Company was following the school bus and stopped at this point to pick up a passenger who was standing on the eastern edge of this side road. The front of the defendant’s bus, passed the rear of the school bus and was near the western edge of the side road when it came to a stop on the hard surface. Here the waiting-passenger got on the defendant’s west-bound bus.

In the meantime plaintiff’s daughter was discharged from the school bus at a point about 25 feet from the hard surface of the highway and was in the act of going behind the bus of the Carolina Coach Company and running across tbe bard surface, wbicb was 18 feet wide at that point, wben sbe was struck by a car traveling in ail easterly direction and driven by tbe defendant, G. E. G-ibbs. Tbe view of plaintiff’s intestate, as well as that of tbe defendant Gibbs, was, for an interval, obstructed by tbe presence of tbe bus of tbe Carolina Coacb Company. Its motor was in tbe rear aiid running at tbe time.

Plaintiff’s evidence tends to show that tbe speed of tbe Gibbs car was around 50 miles an bour. Tbe defendants say it was not more than 35 or 40 miles an bour. In any event, tbe Gibbs ear was not more tban 8 or 10 feet away, so be testifies, wben plaintiff’s intestate ran from behind tbe defendant’s bus and attempted to cross tbe southern half of tbe bard surface. Gibbs swerved bis car to tbe right, but was unable, to avoid striking tbe plaintiff’s daughter. Gibbs took her in bis car and did all be could for her but sbe died as a result of tbe injuries before reaching tbe hospital.

Tbe jury found, on separate issues, that neither defendant was negligent and that plaintiff’s intestate was contributorily negligent.

From judgment on tbe verdict, tbe plaintiff appeals, assigning errors.

H. F.- Seawell, Jr., and Douglass & McMillan for plaintiff, appellant.

J. Laurence Jones and, William D. Sabiston, Jr., for defendant Coach Co., appellee.

M. G. Boyette for defendant Gibbs, appellee.

Stacy, C. J.

Tbe case was here at tbe Fall Term, 1945, on demurrer to tbe complaint. 225 N. C., 668, 36 S. E. (2d), 263. It is here now on plaintiff’s appeal from an adverse verdict. It will be noted at once that tbe case as made by tbe evidence differs widely from tbe one alleged in tbe complaint.

Tbe jury was justified in exculpating tbe defendant, Carolina Coacb Company, from liability under what was said in Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Leary v. Bus Corp., 220 N. C., 745, 18 S. E. (2d), 426, and White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843.

Tbe defendant G. E. Gibbs, offered four witnesses who, without objection, testified to his good character in tbe community where be lives, and in tbe court’s charge, reference was made to this evidence as follows: “Character evidence is substantive evidence; that is, it is basic evidence; not only substantive evidence but it also bears on bis credibility as a witness,” etc. This, of course, was erroneous as tbe case is one in tort based on alleged negligence. Tbe issues are civil, rather tban criminal, in character, and tbe evidence was competent only as affecting tbe defendant’s credibility as a witness. Lumber Co. v. Atkinson, 162 N. C., 298, 78 S. E., 212. The trial court seems to have overlooked this difference, for the moment. Nevertheless, it had the effect of casting the substantive weight of such evidence into the scales against the plaintiff, and may have been the determinative factor im the case. It was sufficient to affect the atmosphere and tone of the trial, a circumstance which commands the attention of every experienced practitioner.

The defendant, on the other hand, says that in all events, the error should be regarded as harmless since plaintiff’s intestate was guilty of contributory negligence as a matter of law. We are unable to agree with this contention in the light of what was said in the recent case of Sparhs v. Willis, ante, 25, and cases there cited, especially Smith v. Miller, 209 N. C., 170, 86 S. E., 1036. Hence, the result:

No Error as to the defendant, Carolina Coach Co.

New Trial as to the defendant, G. E. Gibbs.