Fuller ex rel. Alford v. Fuller, 253 N.C. 288 (1960)

Nov. 2, 1960 · Supreme Court of North Carolina
253 N.C. 288

MELBA SUE FULLER, by her Next Friend, J. D. ALFORD v. LUCY W. FULLER, Administratrix of the Estate of GURNEY RYLAND FULLER, Deceased, and J. R. FULLER; and JIMMY ALLEN FULLER, by his Next Feiend, J. D. ALFORD, v. LUCY W. FULLER, Administratrix of the Estate of GURNEY RYLAND FULLER, Deceased, and J. R. FULLER.

(Filed 2 November, 1960.)

Automobiles §§ 36, 39, 41a— Negligence is not presumed from the mere -happening of an accident.

Evidence tending only to show that the driver of a truck veered gradually -to the left and ran off the hard surface at a point where the highway was straight and that the truck continued on until it struck a tree some 150 feet after it had left the highway, resulting in the death of the driver and injury to the two passengers, with further evidence that the day was clear and the road dry and that there was no other traffic at this point, is insufficient to show that the injury to the passengers was the result of the negligence of the driver, since negligence will not be presumed from the mere happening of an accident, but, in tbe absence of evidence on the question, freedom from negligence will be presumed.

Appeal by plaintiffs from McKinnon, J., February-March 1960 Civil Term, of Fkanklin.

These actions were consolidated for trial. Plaintiffs seek to recover damages for personal injuries received by them in an automobile accident which occurred 27 May 1958, about 2:30 P.M.

Plaintiffs, Melba Sue Fuller and Jimmy Allen Fuller, were riding in a pickup truck operated by their brother, Ryland Fuller. All three were minors. Jimmy was sitting on the right side, Melba in the middle. The pickup was proceeding southwardly on N. C. Highway No. 39, about 7 miles south of Louisburg in a rural area of Franklin County. There was no other traffic. The weather was clear and the road dry. At this point the highway is straight. About 300 feet north of this point is a slight curve to the west for southbound traffic. The pickup was carrying a tobacco setter. The truck veered gradually to the left, ran off the hardsurface and onto the shoulder with a bumping sound, continued on the shoulder at a slight angle to the highway for about 75 feet, proceeded into a field about two feet below the level of the highway, and continued in a straight line about 150 feet until it struck a cedar tree. The tree is 15 to 20 feet from the center of the highway and is 18 to 20 inches in diameter.

Eyewitnesses estimated the speed of the truck at 35 to 40 miles per hour. No one saw the truck before it reached the shoulder of *289the' road. Jimmy was asleep and did not awake until after the accident. Melba was asleep but awoke as the truck crossed a driveway just before hitting the tree. She testified that the speedometer reading was 43 miles per hour and Ryland was trying to push her “off from his elbow.”

The truck was almost demolished. Ryland received injuries from which he died. He did not regain consciousness after the accident. Melba and Jimmy were injured. The truck was the property of plaintiffs’ uncle, J. R. Fuller.

On motion of defendants the court entered judgments of nonsuit at the close of plaintiffs’ evidence. Plaintiffs appealed and assigned errors.

Yarborough, Yarborough & Paschal for plaintiffs, appellants.

Smith, Leach, Anderson & Dor sett for defendants, appellees.

PeR Cueiam.

The cause of the accident rests in the realm of speculation- and conjecture. Negligence will not be presumed from the mere.happening of an accident. In the absence of evidence on the question, freedom from negligence will be presumed. Ivey v. Rollins, 251 N.C. 345, 111 S.E. 2d 194, and 250 N.C. 89, 108 S.E. 2d 63.

The judgments below are