Howard v. Bell

62 S.E.2d 323 (1950)

232 N.C. 611

HOWARD v. BELL et al.

No. 384.

Supreme Court of North Carolina.

November 8, 1950.

*324 Lewis, Lewis & Hedrick and Hugh G. Mitchell, Statesville, for plaintiff, appellee.

Land, Sowers & Avery, Statesville, and Z. V. Turlington, Mooresville, for defendants, appellants.

STACY, Chief Justice.

The question for decision is whether the plaintiff's case survives the challenge interposed by demurrer to the evidence. The trial court answered in the affirmative, and we are inclined to uphold the ruling; conceding at once, however, that much could be written in support of the opposite view. It is clearly a border-line case.

The one circumstance which seems to favor recovery is the speed at which the defendants' truck was being driven in the obvious light of the condition of the road. *325 The driver should have known and realized, in the exercise of due care, that his uncovered wheels, spinning at a high rate of revolution, were liable to pick up some of the loose rocks and hurl them in any direction. He was not entitled to use the road as if he alone were on it. Sic utere tuo, etc., applies on the highway as well as elsewhere. It is not only good law but also good morals.

Speaking to a similar question in Teche Lines v. Bateman, 162 Miss. 404, 139 So. 159, 161, Ethridge, P. J., observed: "It is well known that cars proceeding at a high rate of speed on gravel roads throw gravel by reason of the force of the car striking the gravel, or by reason of the suction of the car; and it is well known that such flying gravel or small rocks are calculated to inflict injury. The greater the rate of the speed the more violent the hurling of such gravel or rock becomes."

It is true the driver of defendants' truck disputes the plaintiff's testimony in respect of the condition of the road and the rate of his speed, but this is not to be considered on motion for nonsuit. Williams v. Kirkman, N.C., 61 S.E.2d 706; Carson v. Doggett, 231 N.C. 629, 58 S.E.2d 609. We take the plaintiff's evidence as true in testing the sufficiency of his case. Graham v. North Carolina Gas Co., 231 N.C. 680, 58 S.E.2d 757. "On motion to nonsuit, plaintiff's evidence will be taken as true and he will be given advantage of every fair and legitimate inference which it raises". 7th Syllabus, Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661.

On cross-examination, the driver of the truck did admit that he saw some loose rocks and gravel on the road, "not a great amount", and that "this loose rock is damaging to that speed of 50 miles an hour", i. e., he means to say, and did say, as we understand his testimony, that he knew some damage was likely to result from running over the loose rock at such speed. This, then, is an admission coming from the defendants which is favorable to the plaintiff.

Two cases in our Reports need to be considered, Stewart v. Atlantic Coast Line R. R., 202 N.C. 288, 162 S.E. 547, and Gant v. Gant, 197 N.C. 164, 148 S.E. 34. The plaintiff relies on one; the defendants on the other.

In the Stewart Case, the defendant railroad was held liable for maintaining a negligent road crossing, in that loose rocks and stones were placed or allowed to remain on the crossing, which were thrown or hurled against the plaintiff by a rapidly-passing truck. The case supports the plaintiff obliquely, but it is not directly in point. There, the action was against the builder and keeper of the crossing. Here, the suit is against the owner of the offending truck.

The Gant Case, cited by the defendants, is more nearly in point, but not quite controlling. There, a car was stuck in snow and ice. Boards were placed in front and under the wheels to give them gripping or purchasing power in pulling the car out. One of the spinning wheels threw its board backward and against the plaintiff's leg, injuring it. Recovery was denied on the ground of a non-foreseeable result or accident. Accordant: Warner v. Lazarus, 229 N.C. 27, 47 S.E.2d 496; Brady v. Southern R. R., 222 N.C. 367, 23 S.E.2d 334, Id., 320 U.S. 476, 64 S. Ct. 232, 88 L. Ed. 239; 38 Am.Jur. 712.

We think the testimony of the driver of the truck brings the case within a foreseeable injurious result. The exact injury need not have been foreseen. It is enough if some likely injury or injurious consequence could have been foreseen, or should have been anticipated, in the exercise of reasonable prevision. In McIntyre v. Monarch Elevator Co., 230 N.C. 539, 54 S.E.2d 45.

The verdict and judgment will be upheld.

No error.