Edwards v. Cross

64 S.E.2d 6 (1951)

233 N.C. 354

EDWARDS v. CROSS.

No. 234.

Supreme Court of North Carolina.

March 21, 1951.

Scott B. Berkeley and Hugh Dortch, Goldsboro, for plaintiff, appellant.

J. Faison Thomson, Goldsboro, for defendant, appellee.

STACY, Chief Justice.

The question for decision is whether the evidence, taken as true and in its most favorable light for the plaintiff, together *7 with the reasonable intendments and legitimate inferences fairly deducible therefrom, suffice to overcome the demurrer and to carry the case to the jury on the issue of defendant's negligence. The trial court answered in the negative. We are inclined to a different view.

The evidence clearly permits the inference that the defendant was the motorist who struck the plaintiff; that the extent and character of the injuries inflicted appear to indicate a frontal contact or collision, rather than a side-swiping occurrence; that the automobile he was driving was his and under his control and operation; that he had a clear vision of the beaten path or farm road crossing the highway; that nothing interfered with his seeing the plaintiff, if he were looking or keeping a proper lookout; that his failure to sound his horn or to slacken his speed permits the inference that his attention was diverted from the road ahead and the plaintiff's presence thereon; and that his failure to stop as required by statute, G.S. § 20-166, or immediate flight from the scene of the injury, affords sufficient evidence of conscious wrong, or dereliction on his part, to warrant the jury in so concluding. State v. Foster, 130 N.C. 666, 41 S.E. 284; Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477, 479. His better judgment almost persuaded him to stop a short distance up the road, but the impulse was not quite strong enough. Doubtless he could see, and did see through his rear-view mirror, the plaintiff's body lying motionless in the middle of the road and her mother frantically calling for assistance and trying to help her. This could have added to his nervousness when later apprehended and charged with the offense. The jury may ascribe such uneasiness to his appreciation and knowledge of guilt. Actions are sometimes just as vocative as words and often more reliable or trustworthy. Language can be used to conceal thought as well as to express itVoltaire.

By rendering the plaintiff unconscious and running away the motorist has forced her to rely on circumstantial evidence. The battle may be an unequal one, but the plaintiff says it is not yet hopeless. She is still pressing her claim.

The applicable rule is stated by Barnhill, J., in the last cited case, Etheridge v. Etheridge, as follows: "When a thing which caused an injury is shown to be under the control and operation of the party charged with negligence and the accident is one which, in the ordinary course of things, will not happen if those who have such control and operation use proper care, the accident itself, in the absence of an explanation by the party charged, affords some evidence that it arose from want of proper care".

This was followed in Boone v. Matheny, 224 N.C. 250, 29 S.E.2d 687, and Wyrick v. Ballard & Ballard Co., 224 N.C. 301, 29 S.E.2d 900.

The case of Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661, is not at variance with our present position. There, a child not quite nineteen months of age, was struck by a passing Chevrolet truck and killed. The scene of the injury was in the road immediately adjacent to the home of the child's parents. No one saw the child in the road prior to the injury. The driver of the truck was not aware of the child's presence. The more likely occurrence was that the child ran under the truck behind the cab, or after the driver's vision was cut off. We think the case of Yokeley v. Kearns, 223 N.C. 196, 25 S.E.2d 602, is more nearly in point in factual situation than the Mills case.

It is true no inference of negligence arises from the mere fact of an accident or injury. Mills v. Moore, supra; Lamb v. Boyles, 192 N.C. 542, 135 S.E. 464, 49 A.L.R. 589; Isley v. Virginia Bridge & Iron Co., 141 N.C. 220, 53 S.E. 841. Here, however, we have something more than the plaintiff's injury. Etheridge v. Etheridge, supra. We think the circumstances are such as to warrant the submission of the issues to the jury; the facts shown seem to make out a prima facie case. The twelve will say how it is.

Reversed.