Letterman Ex Rel. Letterman v. Miller , 209 N.C. 709 ( 1936 )

Connor, J.

An examination of the record in this appeal discloses no error in the rulings of the judge of the Superior Court by which certain of defendants’ assignments of error on their appeal from the judgment of the general county court were overruled. There is error, however, in the rulings of the judge by which other assignments of error were sustained, resulting in the order for a new trial. For this reason there is error in the judgment of the Superior Court awarding the defendants a new trial. The judgment of the Superior Court is reversed on plaintiff’s appeal to this Court. The appeal of the defendants is dismissed. The judgment of the general county court should be affirmed.

The only ruling of the judge of the Superior Court at the hearing of defendants’ appeal from the judgment of the general county court which seems to require discussion by this Court is the ruling by which defendants’ contention that there was error in the refusal of the trial court to allow their motion for judgment as of nonsuit, at the close of all the evidence, was not sustained. There was no error in this ruling.

There was evidence at the trial in the general county court tending to show that plaintiff, a child nine years of age, with her brother and two sisters, neither of whom was over fourteen years of age, was walking along the edge of the highway, on her way to school. A neighbor passed in his automobile, taking his child to the same school which the plaintiff and her brother and sisters attended. He indicated to plaintiff that he would take her and her brother and sisters to school in his automobile, and at once began to slow down. He stopped his automobile about thirty feet from the plaintiff, on the opposite side of the highway. At this time, defendants’ truck was approaching, going in the same direction as the automobile. When the driver of the truck saw that the automobile was slowing down, lie slowed down, and when tbe automobile stopped, be stopped, a short distance in tbe rear of tbe automobile. Tbe plaintiff, assuming tbat tbe truck bad stopped so tbat sbe could cross tbe highway and enter tbe automobile in safety, took a step in tbe direction of tbe parked automobile. At tbis moment, without warning, tbe driver of tbe truck started up and turned toward tbe plaintiff for tbe purpose of going around tbe automobile. In tbis situation tbe plaintiff was struck and knocked down by tbe truck, and thereby suffered serious injuries which are probably permanent.

Tbis evidence was properly submitted to tbe jury as tending to show, notwithstanding tbe evidence for tbe defendants to tbe contrary, tbat tbe driver of tbe truck was negligent, and tbat bis negligence was tbe proximate cause of plaintiff’s injuries. See Smith v. Miller, ante, 170.

Tbe action is remanded to tbe Superior Court of Buncombe County tbat judgment may be entered in said court affirming tbe judgment of tbe general county court of Buncombe County.

Reversed in plaintiff’s appeal.

Defendants’ appeal dismissed.