Grimes v. Carolina Coach Co.

166 S.E. 599, 203 N.C. 605, 1932 N.C. LEXIS 53

• Court: Supreme Court of North Carolina
• Decided: November 30, 1932
• Status: Published

Opinion

Brogden, J.

The plaintiff bases the right to recover upon two aspects of negligence, to wit:

(a) That the bus owned and operated by the defendant was traveling-westward near the center of the road with its left wheels over the center line of the highway about three and one half or four feet, thus placing the bus partially on the wrong side of the road and that such negligent operation was the proximate cause of the injury complained of;

(b) That the driver of the bus was not maintaining a careful and proper lookout, for that the road was straight for a distance of approximately 900 feet.

O. S., 2621(51) provides that “upon all highways of sufficient width . . . the driver of a vehicle shall drive the same upon the right half of the highway,” etc. Undoubtedly a violation of the statute is negligence per se, but such negligence is not actionable unless there is a causal relation between the breach and the injury. Burke v. Coach Co., 198 N. C., 8, 150 S. E., 636.

Plaintiff offered evidence to the effect that there were large tire tracks at the scene of the killing, extending to the left of the center of the road and that these tracks apparently turned to the right toward the ditch on the right side of the road as you face westward, and the right wheels of the bus were in the ditch on its right after the collision. Hence, it is inferred that the bus was traveling on the wrong side of the road.

The evidence discloses that Highway Number 10 is one of the main arteries of travel through the State, and that trucks of various types and automobiles use this road at all hours of the day and night. A witness for plaintiff said: “It (No. 10) is a heavily traveled highway. It is heavily traveled by freight trucks at night. Freight trucks use substantially the same tires that buses use.” Consequently the track evidence is vague and uncertain, and is susceptible of highly speculative interpretation. "Where was the plaintiff’s intestate when the fatal blow was struck? What struck him? Did the bus strike him or did the bus strike his car, standing approximately across the road ? Meeks, a witness for plaintiff, said: “The direction I had pulled him from the position of my car, this car was crossways of the hard surface road and was leading in the airport road, and that was the direction we were pulling.”

Were the lights burning on the car of plaintiff’s intestate at the time of the impact? Meeks said that' his attention was not directed to the lights before the crash, but “after the crash when I got out and came back to where his car was standing there were no lights on it.” Were the lights extinguished by the blow? Nobody knows or undertakes to testify with reference thereto.

In the final analysis the evidence flashes upon the screen substantially the following picture: A large passenger bus is traveling in the night time from Lexington to Salisbury, that is from east to west, along Number 10. The driver swings into a straight stretch of approximately 900 feet. Ahead of him is a lighted Ford touring car across the road. He blows his horn and the Ford ear pulls across the highway into an intersecting road known as the airport road, on the bus driver’s right. But the car of plaintiff’s intestate is also “cross-ways” the highway, manifestly near the center. The evidence does not disclose whether or not this car was lighted. The plaintiff’s intestate is somewhere in the road near his car. There is a crash. After the crash the right wheels of the bus are in the ditch on the right side of the road, facing west, and the rear wheels of the car of plaintiff’s intestate are in the ditch on the right side of the road facing east. The body of the fatally injured man is found on the right side of the hard surface facing east.

The law imposes upon the plaintiff the burden of offering evidence tending to show that the injury was proximately caused by the negligence of the defendant.

In the present case, deductions, inferences, theories and hypotheses rise and run with the shifting turns of interpretation, but proof of negligence must rest upon a more solid foundation than bare conjecture.

Therefore, the court is of the opinion that the ruling of the trial judge was correct.

Affirmed.