PEOPLES BANK & TRUST COMPANY v. Snowden , 267 N.C. 749 ( 1966 )

148 S.E.2d 833 (1966) 267 N.C. 749

PEOPLES BANK & TRUST COMPANY, Administrator of the Estate of George Sprite Barbee, Jr.
v.
Lonnie Glenn SNOWDEN.

No. 32.

Supreme Court of North Carolina.

July 6, 1966.

LeRoy, Wells & Shaw, by Dewey W Wells and L. P. Hornthal, Jr., Elizabeth City, for plaintiff appellant.

Aydlett & White, by Gerald F. White and Frank B. Aycock, Jr., Elizabeth City, for defendant appellee.

SHARP, Justice.

This appeal involves only the question whether plaintiff's evidence was sufficient to take the case to the jury on the issue of defendant's actionable negligence. It presents once again this frequently recurring situation to which there are no eyewitnesses: An automobile leaves the highway, upsets or collides with some object, and thereby causes personal injury or death. The doctrine of res ipsa loquitur is not applicable to such cases, for negligence is not presumed from the mere fact that a vehicle veers off the highway. Crisp v. Medlin, 264 N.C. 314, 141 S.E.2d 609; Yates v. Chappell, 263 N.C. 461, 139 S.E.2d 728. Nevertheless, the physical facts can sometimes tell, more convincingly than could a witness, what occurred prior to the accident. "``Evidence of actionable negligence need not be direct and positive. Circumstantial evidence is sufficient, either alone or in combination with direct evidence.'" Randall v. Rogers, 262 N.C. 544, 549, 138 S.E.2d 248, 251. As Higgins, J., said in Lane v. Dorney, 252 N.C. 90, 92, 113 S.E.2d 33, 34: "As a prerequisite to the presumption of driver responsibility, some evidence, physical, direct, or a combination of both, should be offered that other probable causes were absent, leaving the fair inference the accident resulted from the driver's negligence."

In Lane v. Dorney, supra, the driver of the automobile (Dorney) was going down hill on a long sweeping curve to the left. He failed to make the curve, ran off the road to the right over an embankment, and jumped a stream. The vehicle landed on its top and was completely demolished. The evidence disclosed that Dorney was "perfectly well." His vehicle was in good mechanical condition. The traveled portion of the highway was hard-surfaced, 18 feet wide, with dirt shoulders 3 feet wide. The surface was dry and free of defects. No other travelers were using the highway at the time and place of the accident. There was no evidence of a blowout. In reversing the trial court's judgment of nonsuit, this Court held that the plaintiff's evidence "tended to remove other possible contingencies, leaving the permissible inference that * * * [Dorney] was careless in the discharge of his duties to his passengers by failing to see the curve which he should have seen, or by failing to have his vehicle under such control as would enable him to keep it on the road. Failure in either particular would constitute negligence." Id. at 95, 113 S.E.2d at 36-37. Accord, Yates v. Chappell, supra; Randall v. Rogers, supra.

The decision in Lane v. Dorney, supra, and the cases in line with it, control the decision here. The road was dry and free from defects. There was no other traffic on the highway at the time of the accident. Defendant's 1965 Ford, purchased new five to six weeks prior to the accident, was in good mechanical condition. After the accident, the steering mechanism and the brakes were found not to be defective; an examination of the tires negated a blowout. The defendant was in good health and was not subject to blackouts or fainting spells. The area immediately north of the place where defendant's automobile left the pavement is a 45 MPH speed zone. In addition to this evidence, plaintiff offered defendant's own admission that he was driving the automobile and also his explanation that "when he came to the narrowing of the road it confused him, he became confused, and the car went off the road."

From the foregoing evidence, it is inferable that defendant, as he approached the narrowing of the road, failed to maintain a proper lookout and to keep his car under control; that he was driving at an excessive rate of speed when he ran off of the pavement; and that such conduct was a proximate cause of Barbee's death. Drumwright v. Wood, 266 N.C. 198, 146 S.E.2d 1. As in Lane v. Dorney, supra, 252 N.C. at 94, 113 S.E.2d at 36, plaintiff's evidence in the case at hand—viewed, as it must now be, in the light most favorable to plaintiff—"tends to remove everything that might have influenced the movement of the car, causing it to leave the road, save and except the hands of the man at the wheel."

Defendant relies upon the case of Crisp v. Medlin, supra. This case, however, is distinguishable from the case at bar. In Crisp, the plaintiff, inter alia, failed to offer sufficient evidence to warrant a finding that defendant's intestate was driving the automobile at the time of the fatal wreck.

The judgment of involuntary nonsuit was erroneously entered and is

Reversed.

MOORE, J., not sitting.