Davis v. Peacock , 10 N.C. App. 256 ( 1970 )

MALLARD, Chief Judge.

The actual motion for a directed verdict is not contained in the record, and the judgment allowing this motion does not state upon what grounds it was made or allowed. The plaintiff makes no contention that the motion did not state the specific grounds therefor as required by statute; therefore, we assume that the motion complied with Rule 50 of the Rules of Civil Procedure. From the briefs of both parties, we also assume that the motion was made on the grounds that on the facts and the law, the plaintiff failed to show a right to relief. Litigants would be well advised to include in the record the specific grounds stated in the motion for a directed verdict. A failure to do so could result in a dismissal of the appeal.

The evidence and stipulations tended to show that Peacock and Davis both died on 7 March 1967 between 3:30 and 4:00 a.m. as a result of the wreck of the 1966 Mercury automobile owned by Peacock. Peacock and Davis left Davis’ home on the night of 6 March 1967 at about 7:30 p.m. in the 1966 Mercury to go to a fish stew at Richlands. Between 3:30 and 4:00 a.m. on the morning of 7 March 1967, the driver of Peacock’s Mercury, while traveling North on U. S. Highway #17, was driving at a speed in excess of sixty miles per hour at a point about two miles1 South of Holly Ridge. The automobile went out of control and while skidding for about two hundred feet, turned over two or three times before coming to rest on its top at a point about twenty to twenty-five feet from the west edge of the highway. Peacock and Davis were thrown out of the automobile and were found on the ground about twenty to thirty feet from the automobile and about the same distance from each other. There was no direct testimony as to who was driving. The right trouser leg of Davis was hanging from the right front passenger door of the automobile. Some four hours after the accident and after the automobile had been turned over and pulled by a wrecker vehicle to Jacksonville, a shoe, identified as Peacock’s shoe, was found to be “wedged up under the gas peddle and the brake; it looked like it was mashed down on it.” There was also evidence that Peacock customarily wore his shoes with the laces untied. There was ample circumstantial evidence as to the actionable negligence of the driver of the 1966 Mercury at the time of the accident to require submission of the case to the jury. Also, there was evidence tending to show that plaintiff’s intestate was earning money in excess of that required for his support. Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521 (1968); G.S. 28-174.

The question on which decision turns in this case is whether the evidentiary facts that Peacock owned the vehicle involved, that one of his shoes was wedged under the gas pedal and brake, and that Davis’ right trouser leg was torn off and hanging on the door on the passenger’s side of the front seat are sufficient to permit the jury to find that Peacock was the operator of the automobile at the time of the accident.

In Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258 (1957), it was held that the ownership of an automobile by an occupant thereof at the time of a wreck does not raise a presumption that the owner was the driver. In 1 Strong, N. C. Index 2d, Automobiles, § 66, the rule is stated as follows:

“The identity of the driver of a vehicle may be established by circumstantial evidence, either alone or in combination with direct evidence. However, the facts and circumstances must establish identity as a logical and reasonable inference and not merely raise a conjecture, guess, or choice of possibilities.”

See also Greene v. Nichols, supra, and Crisp v. Medlin, 264 N.C. 314, 141 S.E. 2d 609 (1965).

Plaintiff has other assignments of error which we do not discuss since they may not recur on a new trial.

The ownership of the automobile by Peacock, the location of Peacock’s shoe wedged under the gas pedal and the brake, and the location of the right trouser leg of Davis on the right front passenger door of the automobile all point in the same direction and are sufficient to permit the jury to find as a logical and reasonable inference from these established facts that Peacock was the operator of the automobile at the time of the accident. The judgment of the superior court allowing the motion for a directed verdict and dismissing the action is reversed.

Reversed.

Judges Parker and Graham concur.