State v. Triplett

Annotate this Case

75 S.E.2d 517 (1953)

237 N.C. 604


No. 289.

Supreme Court of North Carolina.

April 29, 1953.

*519 Atty. Gen. Harry McMullan, Asst. Atty. Gen. T. W. Bruton, and Gerald F. White, Member of Staff, Raleigh, for the State.

Bowie & Bowie, West Jefferson, and Wade E. Brown, Boone, for defendant, appellant.

JOHNSON, Justice.

Was the evidence sufficient to carry the case to the jury over the defendant's motion for judgment as of nonsuit? We think so.

Evidence tending to show these crucial factors make for the State's prima facie case: The paved portion of the highway was 20 feet wide; the little girl came on the highway from the defendant's right; she had crossed the defendant's traffic lane and was about one and one-half feet beyond the center line when hit; the defendant, in an intoxicated condition, was driving 65 or 70 miles per hour in a known 35-mile per hour speed zone; no cars were parked along the highway near the scene; there was no shrubbery near the edge of the highway opposite where the child was hit; and the defendant said he "didn't see the child until she was in the road."

This, with other corroborating circumstances shown in evidence, was sufficient to sustain the inference of culpable negligence of the defendant as the proximate cause of the little girl's death. The court below properly overruled the demurrer to the evidence. State v. Swinney, 231 N.C. 506, 57 S.E.2d 647; State v. Dills, 204 N.C. 33, 167 S.E. 459; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Palmer, 197 N.C. 135, 147 S.E. 817; State v. Trott, 190 N.C. 674, 130 S.E. 627, 42 A.L.R. 1114; State v. Rountree, 181 N.C. 535, 106 S.E. 669; State v. McIver, 175 N.C. 761, 94 S.E. 682. See also Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561.

The single remaining exception brought forward by the defendant challenges the sufficiency of the court's compliance with G.S. ยง 1-180 in charging the jury. Here the defendant excepts for that the court "did not charge the jury as to the law on every substantial feature of the case embraced within the issues and arising on the evidence, * * *" This exception is untenable as a broadside exception. State v. Brooks, 228 N.C. 68, 44 S.E.2d 482; State v. Lambe, 232 N.C. 570, 61 S.E.2d 608. See also Price v. City of Monroe, 234 N.C. 666, 68 S.E.2d 283.

In the trial below we find no error.