Boyd v. Harper , 250 N.C. 334 ( 1959 )

108 S.E.2d 598 (1959) 250 N.C. 334

Elmer BOYD, Administrator of Charles Edward Boyd, Deceased,
v.
William Harold HARPER, and Claude S. Lewis and J. E. Fleming T/A Carolina Mercantile Co.

No. 675.

Supreme Court of North Carolina.

May 20, 1959.

W. T. Combs, Jr., B. W. Walker, Leaksville, and Ratcliff, Vaughn, Hudson, Ferrell & Carter, Winston-Salem, for plaintiff, appellant.

Brown, Scurry, McMichael & Griffin, Bethea & Robinson, Reidsville, and Sapp & Sapp, Greensboro, for defendants, appellees.

MOORE, Justice.

The allegations of the complaint with respect to reckless driving and failure to keep a reasonable lookout are not supported by the evidence, or by any reasonable inference that may be drawn therefrom, and further discussion thereof is unwarranted.

The decisive inquiry is whether, at the time of the collision in question, the defendant Harper was driving the pickup on the west (his left) side of the center line of the road in violation of G.S. § 20-146 or G.S. § 20-148, as alleged by the plaintiff. If so, such conduct was negligence per se. Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 698, 40 S.E.2d 345. Ordinarily, proximate cause is for the jury. Lyerly v. Griffin, 237 N.C. 686, 689, 75 S.E.2d 730.

Upon arrival at the place of the accident the highway patrolman made photographs of the scene, and these were properly admitted in evidence to explain and illustrate his and other testimony. North Carolina Evidence (Stansbury), Sec. 34, p. 53; State v. Bass, 249 N.C. 209, 211, 105 S.E.2d 645. Patrolman Harrellson made extensive use of the photographs in the course of his testimony and the facts and circumstances disclosed by the photographs are in substantial accord with his recital. Counsel for plaintiff and defendants referred to them repeatedly in their arguments in this Court. We have carefully examined the photographs in the light of the testimony in the case.

Appellant contends that the inference may reasonably be drawn from the facts and circumstances in the case that his intestate came to his death because of the negligence of the defendant Harper in driving the pickup to his left of the center line of the road. He contends that the Dodge automobile driven by deceased came to rest on the west shoulder of the road, facing east, with its right front wheel about 18 inches onto the pavement; that the right rear wheel left a skid mark extending from the pavement to the point it came to rest, but that there was no skid mark on the pavement itself; that the left front door, left quarter panel and top were "bowed" in, showing that the main force of the impact on the Dodge was into its left side; and that mud, dirt, glass, and other debris were in front of the Dodge, about the center of the west lane and none in the east lane at this place. Appellant contends, therefore, that defendants' pickup came across the center line of the road, struck the side of the Dodge, turned it through an angle of about 90 degrees and left all of the debris from the impact in the west lane. Appellant emphasizes the fact that the side skidding of the right rear wheel left no mark on the pavement.

On their part, appellees point out that the pickup came to rest on the east side of the road, at about a 45 degree angle with the road, headed northwest, lying on its right side, and about two-thirds off the paved portion of the road (as shown by the testimony and explained by the photographs); that mud, dirt, glass, and other debris lay beside it in the east lane, none in the west lane; that a part of the windshield of the pickup was in front of it in the east lane. Appellees contend that the collision occurred at this point.

There were no tire marks on the road at any place. In leaving the road and coming to rest none of the tires on the Dodge left any marks on the pavement. This is also true of the pickup. The two vehicles were 60 feet apart after the collision. At the center line and between the yellow lines, 10 feet north of the Dodge and 50 feet south of the pickup, there was a large "dug" place. With reference to this the patrolman said: "There is a slight streak from the mark running from the white on to the edge of the yellow which would be on Harper's side." If one of the vehicles made the "dug" place and the streak leading therefrom, we can only conjecture as to whether it was moving toward the east or toward the west. None of the debris near the Dodge was identified as coming from the pickup. There is no evidence to show that the pickup was ever at or beyond the center of the read. As to where the impact took place or what happened with respect to the movement of the vehicles immediately after they collided, we can only surmise.

Taken in the light most favorable to the plaintiff, the evidence does not show, and does not permit a reasonable inference, that the defendant Harper was at the time of the collision operating the pickup to the west of the center line.

"Negligence is not presumed from the mere fact that plaintiffs' intestate was killed in the collision." Williamson v. Randall, 248 N.C. 20, 25, 102 S.E.2d 381, 386; Robbins v. Crawford, 246 N.C. 622, 628, 99 S.E.2d 852. However, direct evidence of negligence is not required, but the same may be inferred from facts and attendant circumstances. Etheridge v. Etheridge, 222 N.C. 616, 618, 24 S.E.2d 477. But in a case such as this, the plaintiff must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendants. Robbins v. Crawford, supra; Whitson v. Frances, 240 N.C. 733, 737, 83 S.E.2d 879; Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670. In Parker v. Wilson, 247 N.C. 47, 53, 100 S.E.2d 258, 262, Parker, J., speaking for the Court, said: "Such inference cannot rest on conjecture or surmise. Sowers v. Marley, supra. ``The inferences contemplated by this rule are logical inferences reasonably sustained by the evidence, when considered in the light most favorable to the plaintiff.' Whitson v. Frances, supra. ``A cause of action must be something more than a guess.' Lane v. Bryan, 246 N.C. 108, 97 S.E.2d 411, 414. A resort to a choice of possibilities is guesswork, not decision. Hanrahan v. Walgreen Co., 243 N.C. 268, 90 S.E.2d 392. To carry his case to the jury the plaintiff must offer evidence sufficient to take the case out of the realm of conjecture and into the field of legitimate inference from established facts." See also Stegall v. Sledge, 247 N.C. 718, 722, 102 S.E.2d 115.

The judgment of involuntary nonsuit is

Affirmed.