Champion v. Waller

150 S.E.2d 783 (1966)

268 N.C. 426

Jean Gaither CHAMPION, Administratrix of the Estate of William Stewart Champion, Deceased, Plaintiff, v. Joseph John WALLER, Defendant.

No. 454.

Supreme Court of North Carolina.

November 2, 1966.

*785 Bobby W. Rogers, Henderson, for plaintiff appellant.

Bryant, Lipton, Bryant & Battle, Durham, for defendant appellee.

LAKE, Justice.

It is elementary that in passing upon a motion for judgment of nonsuit the evidence of the plaintiff must be taken to be true, and must be interpreted in the light most favorable to him, and all reasonable inferences in his favor must be drawn therefrom. Bowling v. City of Oxford, 267 N.C. 552, 148 S.E.2d 624.

Facts alleged in the complaint and admitted in the answer are conclusively established by the admission, it not being necessary to introduce such allegations in evidence. Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16; Stansbury, North Carolina Evidence, § 177. The same is true of allegations of new matter in a further answer, which new matter is favorable to the plaintiff. In passing upon a motion for judgment of nonsuit, all such allegations in the answer are taken to be true and are to be considered along with the evidence.

So interpreted and supplemented by the admissions in the answer, the plaintiff's evidence is sufficient to support a finding that the deceased boy, at the time of the collision, was riding his bicycle on his extreme right hand portion of the pavement in accordance with the provisions of the statutes. G.S. § 20-146(b); G.S. § 20-38(ff). It is also sufficient to permit, but *786 not to compel, findings that the defendant, driving at a speed not less than 45 miles per hour, saw, or should have seen, the boy so riding the bicycle upon the pavement for a distance of several hundred feet before overtaking him, that he continued to drive in the same lane of traffic as that occupied by the bicycle without sounding his horn or reducing his speed, and struck the bicycle in the rear with sufficient force to throw it over the top of the station wagon.

Under such circumstances, a failure to sound the horn is evidence of negligence. Webb v. Felton, 266 N.C. 707, 147 S.E.2d 219. There is also basis for concluding that the defendant's speed was unreasonable under the prevailing conditions. "Any speed may be unlawful if the driver of a motor vehicle sees, or in the exercise of due care could and should have seen, a person or vehicle in his line of travel." Cassetta v. Compton, 256 N.C. 71, 123 S.E.2d 222, 226. While not conclusive, the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed or in following too closely, or in failing to keep a proper lookout. Beanblossom v. Thomas, 266 N.C. 181, 146 S.E.2d 36; Burnett v. Corbett, 264 N.C. 341, 141 S.E.2d 468; Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62, 96 A.L.R.2d 754. Thus there was ample evidence, taken in conjunction with admissions in the answer, from which the jury would have been justified in finding, though not compelled to find, that the defendant was negligent and such negligence was the proximate cause of the injury and death of the plaintiff's intestate.

There is in the present record no evidence whatever of contributory negligence by the deceased boy and, he being only 13 years of age, there is a rebuttable presumption that he was not capable of contributory negligence, though the plaintiff's own evidence of his exceptionally good record in school would justify the jury in finding that he was so capable of negligence. See Caudle v. Seaboard Air Line R. R., 202 N.C. 404, 163 S.E. 122. The judgment of nonsuit cannot be sustained on the ground of contributory negligence by the deceased.

The very presence of a young boy riding a bicycle on the highway is, in itself, a danger signal to a motorist approaching him from the rear. Ordinarily, it is a question for the jury as to whether the motorist has responded to such danger signal as a reasonable man would have done. See Rodgers v. Carter, 266 N.C. 564, 146 S.E.2d 806.

We do not express any opinion as to what were the facts of this matter. The defendant has not yet had an opportunity to testify or offer witnesses in his behalf.

Reversed.