Hendrix v. Southern Railway Co.

Supreme Court of North Carolina

Hendrix v. Southern Railway Co.

150 S.E. 873, 198 N.C. 142, 1929 N.C. LEXIS 437

CourtSupreme Court of North Carolina

DecidedDecember 30, 1929

StatusPublished

Cited by14 cases

This text of 150 S.E. 873 (Hendrix v. Southern Railway Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hendrix v. Southern Railway Co., 150 S.E. 873, 198 N.C. 142, 1929 N.C. LEXIS 437 (N.C. 1929).

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Opinion

OlakksoN, J.

Tbe only question presented on this appeal is the correctness of the ruling of the court below in sustaining the defendants’ motion for judgment as in case of nonsuit at the close of all the evidence. Taking the evidence of plaintiff and defendants in the light most favorable to plaintiff, we see no error'in the court below sustaining the motion. It is well settled in this jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per set, but the violation must be the proximate cause of the injury. Ordinarily this is a question for the jury if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.

“What is negligence is a question of law, and when the facts are admitted or established is for the court.” Burdick on Torts, 2d ed., 429; Hinnant v. Power Co., 187 N. C., at p. 293; Thompson v. R. R., 195 N. C., 663.

In Elder v. R. R., 194 N. C., at p. 619, citing numerous authorities, it is held: “Originally, under C. S., 567, in cases calling for its application, there was some question as to whether a plea of contributory negli-ligence (the burden of such issue being on the defendant) could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory negligence of the plaintiff is established by his or her own evidence, as he or she thus proves himself or herself out of court.”

There is no evidence to submit an issue of last clear chance. Buckner v. R. R., 194 N. C., 104; Redmon v. R. R., 195 N. C., 764.

The defendant company, according to the contention of plaintiff, was guilty of a misdemeanor under the town ordinance for obstructing Main Street in the town of Canton for over three minutes. The plaintiff in attempting to cross between the two cars while standing took chances, and must bear the burden of his folly. It is a pathetic mishap, which often overtakes youth, and entails suffering sometimes for a lifetime, as in this case. The humanities are appealing, but we cannot take unjustly from one and give it to another. For the reasons given, the judgment is

Affirmed.

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OlakksoN, J.

Tbe only question presented on this appeal is the correctness of the ruling of the court below in sustaining the defendants’ motion for judgment as in case of nonsuit at the close of all the evidence. Taking the evidence of plaintiff and defendants in the light most favorable to plaintiff, we see no error'in the court below sustaining the motion. It is well settled in this jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per set, but the violation must be the proximate cause of the injury. Ordinarily this is a question for the jury if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.

“What is negligence is a question of law, and when the facts are admitted or established is for the court.” Burdick on Torts, 2d ed., 429; Hinnant v. Power Co., 187 N. C., at p. 293; Thompson v. R. R., 195 N. C., 663.

In Elder v. R. R., 194 N. C., at p. 619, citing numerous authorities, it is held: “Originally, under C. S., 567, in cases calling for its application, there was some question as to whether a plea of contributory negli-ligence (the burden of such issue being on the defendant) could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory negligence of the plaintiff is established by his or her own evidence, as he or she thus proves himself or herself out of court.”

There is no evidence to submit an issue of last clear chance. Buckner v. R. R., 194 N. C., 104; Redmon v. R. R., 195 N. C., 764.

The defendant company, according to the contention of plaintiff, was guilty of a misdemeanor under the town ordinance for obstructing Main Street in the town of Canton for over three minutes. The plaintiff in attempting to cross between the two cars while standing took chances, and must bear the burden of his folly. It is a pathetic mishap, which often overtakes youth, and entails suffering sometimes for a lifetime, as in this case. The humanities are appealing, but we cannot take unjustly from one and give it to another. For the reasons given, the judgment is

Affirmed.

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150 S.E. 873, 198 N.C. 142, 1929 N.C. LEXIS 437, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hendrix-v-southern-railway-co-nc-1929.

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