Adcox v. Austin , 235 N.C. 591 ( 1952 )

70 S.E.2d 837 (1952) 235 N.C. 591

ADCOX
v.
AUSTIN.
McINTYRE et al.
v.
AUSTIN.

No. 593.

Supreme Court of North Carolina.

May 21, 1952.

James W. Mason, Laurinburg, and Smathers & Carpenter, Charlotte, for plaintiff appellees.

McKinnon & McKinnon, Lumberton, Banks D. Thomas, Wadesboro, and Varser, McIntyre & Henry, Lumberton, for defendant appellant.

VALENTINE, Justice.

This record reveals one of life's dark tragedies, in which the defendant's mother and friend were killed, her small son badly hurt and the defendant herself severely, painfully and permanently injured. The personal narrative of these events by the defendant must have made a tremendous emotional appeal to the presiding judge and the jury. However, these, as all other matters involved in litigation, must be stripped of all pathos and pity and decided upon the merits of the matter under the rules of law developed for the administration of justice. With this end in view, we have examined carefully the exceptions entered by the appellant and brought forward in her brief, and in them we find no reversible error to justify the awarding of a new trial.

In the testimony of Mrs. Watson she spoke of looking in her rear-view mirror shortly after the defendant passed and exclaiming to her husband, "That car hit the truck." This was a spontaneous exclamation and competent under the rule laid down in State v. Smith, 225 N.C. 78, 33 S.E.2d 472, and cases there cited. When asked if there was anything about the car that attracted her attention, she replied, "I noticed she was driving fast." Exception to this question and answer is without merit. The witness had testified that she watched the automobile even after it passed. It was competent for her to explain why she gave it more attention than usual. Furthermore she immediately gave her estimate of the speed as 55 miles per hour, to which there was no objection.

A large part of appellant's well-prepared brief is devoted to a forensic discussion of the evidence directed toward the negligence of the plaintiffs, the injuries and suffering of the defendant, and the damages involved in the collision, all of which is immaterial in view of the jury's findings that the plaintiffs were negligent and that the defendant was guilty of contributory negligence.

Nowhere are we referred to an authority in her brief, nor has our investigation disclosed any precedent, which was violated by the charge of the court. The only real question for determination upon this record is whether there was evidence worthy to be submitted to the jury upon the question of the defendant's contributory negligence. We think that a jury question arose upon the evidence.

The evidence revealed that the road was wet and slick with rain still falling. The headlights were burning on the tractortrailer. The tractor-trailer, traveling at 35 miles an hour, was jack-knifed by the application of brakes when the car in front of it slowed down at intersecting highways. The evidence also tended to show that the defendant was operating her automobile on a wet road under atmospheric conditions which made fast driving dangerous and that she failed to keep a proper lookout. The impact and destructive results of the collision itself could properly be regarded as tending to indicate excessive speed. "There are a few physical facts which speak louder than some of the witnesses." Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, 89; Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602.

There was evidence that the defendant's car struck the right rear tractor wheel with sufficient force to spin or shunt the tractor-trailer around, and almost demolish the Austin car. The force with which defendant's car struck the tractor and the attendant destruction, injury and death was appropriate evidence to be considered by the jury upon the question of contributory negligence of the defendant. Baker v. Atlantic Coast Line R. Co., 205 N.C. 329, 171 S.E. 342; Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555; Herman v. Atlantic Coast Line R. Co., 197 N.C. 718, 150 S.E. 361.

G.S. § 20-141 lays down this statutory principle: "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing." The fact that the speed of a vehicle is less than the maximum allowed by law for such vehicle "shall not relieve the driver from the duty to decrease speed * * * when traveling upon any narrow * * * roadway, or when special hazard exists with respect to * * * other traffic or by reason of weather or highway conditions"; and the statute further directs that "speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on * * * the highway in compliance with legal requirements and the duty of all persons to use due care." Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593, 597.

It is the duty of every driver of a motor vehicle to keep and maintain a proper lookout in the direction of travel and upon such driver is imposed the responsibility and duty of seeing that which he ought to have seen. Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 332. Under our system of jurisprudence the taking of a case or a proper issue from the jury, while under proper circumstances is sometimes unavoidable, is always a delicate task and involves more than a strong feeling that a party should not recover. "The power of the Court is limited to the ascertainment whether there is any evidence at all which has probative value in any or all of the facts and circumstances offered in the guise of proof. * * * It is a matter of dropping the proffered proof into evenly poised balances to see whether it weighs against nothing. Cox v. Norfolk & C. R. Co., 123 N.C. 604, 31 S.E. 848, and cited cases. The result often brings a consequence not to be desired, sometimes not even consonant with our sense of justice, but when it is shocking to the conscience, the judges of the superior court have a remedy with which we are not entrusted." Wall v. Bain, supra.

Whether the outlook of the defendant satisfied the demands of prudence, or whether it was too casual or not sufficiently sustained, or whether the defendant's speed was excessive, are matters addressed to the jury under all the facts and circumstances disclosed by the evidence, and it was for the jury to say whether the defendant was guilty of contributory negligence. It appears that the case was well tried by the able judge who presided and that the jury was deeply concerned about the case and anxious to render a correct verdict upon the evidence. The poll of the jury revealed not only that it had answered the issues as shown by the verdict, but each juror in his own right still assented to the verdict in open court and in the presence of the defendant, whose facial disfiguration and other physical deformities still made an appeal to the sympathies of the jury. The verdict was not inconsistent when measured by the applicable principles of law. Edwards v. Hood Motor Co., 235 N.C. 269, 69 S.E.2d 550.

The jury has spoken and we have no right upon this record to disturb the verdict.

No error.