Green v. Isenhour Brick & Tile Co.

139 S.E.2d 538 (1965) 263 N.C. 503

Martha Jane GREEN
v.
ISENHOUR BRICK & TILE COMPANY, Inc., and Andrew D. Corry.

No. 536.

Supreme Court of North Carolina.

January 14, 1965.

Moser & Moser, Asheboro, for plaintiff appellant.

Lovelace & Hardin, High Point, for defendant appellees.

RODMAN, Justice.

The demurrer admits the factual allegations of the complaint. Bennett v. National Surety Corp., 261 N.C. 345, 134 S.E.2d 678; Stegall v. Catawba Oil Co., 260 N.C. 459, 133 S.E.2d 138.

The complaint alleges these facts: Vehicular travel on South Hamilton Street in High Point is restricted to vehicles moving, or to move, in a northward direction. The vehicular portion of the street is divided into five lanes. The easternmost and westernmost lanes are for use in parking. The three innermost lanes are for moving traffic. An ordinance of High Point requires vehicles parking in the eastern lane to park with their right wheels within one foot of the curb, and in such manner that no part of the parked vehicle shall extend over and into a lane intended for use by moving traffic. Corry, on the afternoon of July 30, 1962, parked a Dodge truck belonging to Brick Company in the easternmost lane. It was parked in such manner that its left front and rear wheels extended some two and one-half feet into the adjoining traffic lane. Plaintiff, a passenger in a Ford automobile operated by Inez Gaines, was traveling north in the lane immediately adjacent to the eastern parking lane. The driver of the Ford, seeing the parked truck extending partially into her lane of travel, pulled slightly to the left. When the Ford reached, or was about to reach, the parked truck, a vehicle using the center lane passed the automobile in which plaintiff was riding. The passing automobile cut in front of the Ford. The driver of the Ford sought to avoid a collision with the truck and the vehicle using the center lane. She pulled to her right, but, because of the extension of the truck into the lane of the Ford, she was unable to avoid a collision. Plaintiff sustained personal injuries. Her automobile was damaged when it collided with the truck.

An allegation that one violated an ordinance intended to promote safety in the use of the streets of a municipality charges negligence. Bridges v. Jackson, 255 N.C. 333, 121 S.E.2d 542; Carrigan v. Dover, 251 N.C. 97, 110 S.E.2d 825; McEwen Funeral Service v. Charlotte City Coach Lines, 248 N.C. 146, 102 S.E.2d 816; 60 C.J.S. Motor Vehicles § 330, p. 770.

It is not sufficient for a complaint to charge a defendant with negligence. The complaint must go further and allege facts showing the negligent act was a proximate cause of the injuries of which plaintiff complains.

Winborne, C. J., defined proximate cause as: "[A] cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed." Jackson v. Neill McKay Gin Co., 255 N.C. 194, 120 S.E.2d 540. The quoted definition is in accord with many other decisions by this Court. See cases assembled, 3 Strong's N.C. Index 449, note 52

Plaintiff's statement of facts is sufficient to charge injury resulting from defendants' negligence, continuing until the moment of impact and injury. A jury may find that a prudent person, with knowledge of the density of traffic indicated by the marking of lanes for parked and moving vehicles, should have foreseen the likelihood of a collision. This is sufficient to require submission to a jury. Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440, Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695; Graham v. Atlantic Coast Line R. R., 240 N.C. 338, 82 S.E.2d 346. The mere fact that another is also negligent and the negligence of the two results in injury to plaintiff does not relieve either. Turner v. Turner, 261 N.C. 472, 135 S.E.2d 12; Batts v. Faggart, 260 N.C. 641, 133 S.E.2d 504; Tart v. Register, 257 N.C. 161, 125 S.E.2d 754.

Defendants contend the complaint shows Miss Gaines, operating the Ford, was negligent; and her negligence insulated defendants' negligence. This contention cannot be sustained for the reasons given above.

Defendants' second assigned ground for the demurrer is that the negligence of the operator of the vehicle bars plaintiff's right to recover. This contention is based on the following reasoning: Plaintiff owned the automobile, hence she had the right to control its operation. The operator, Miss Gaines, was negligent. Her negligence must be imputed to plaintiff under the doctrine of respondeat superior.

Conceding, without deciding, the right to use a demurrer to establish contributory negligence (see G.S. § 1-139), it is, we think, manifest that the demurrer cannot be sustained, since the complaint does not affirmatively show contributory negligence. Boykin v. Bennett, 253 N.C. 725, 118 S.E.2d 12; Skipper v. Cheatham, 249 N.C. 706, 107 S.E.2d 625. It does not necessarily follow from the facts stated in the complaint that the operator of the Ford was negligent. Did she act in an emergency? Was the collision proximately caused by the negligence of defendants and the driver of the car using the center lane? Evidence is necessary to answer these questions. If Gaines, operator of the Ford, was negligent, it does not follow as a matter of law that her negligence would be imputed to the owner-occupant. The evidence may show the owner had relinquished the right to control. The presumption is evidentiary only. Eason v. Grimsley, 255 N.C. 494, 121 S.E.2d 885. The allegation that plaintiff was a passenger would permit her to show she had relinquished the right to control. Harris v. Draper, 233 N.C. 221, 63 S.E.2d 209; Gaffney v. Phelps, 207 N.C. 553, 178 S.E. 231.

When a demurrer has been interposed to defeat plaintiff's claims because of an asserted failure to state a cause of action, recognition must be taken of the separate functions which the complaint and the evidence perform. The complaint should, by statute, G.S. § 1-122, be a "concise statement of the facts constituting the cause of action * * *." Its purpose is to give the opposing party notice of the facts on which plaintiff relies to establish liability. The complaint should not delineate evidentiary facts. Brewer v. Elks, 260 N.C. 470, 133 S.E.2d 159; Tart v. Register, supra; Jones v. Home Building & Loan Association of Thomasville, 252 N.C. 626, 114 S.E.2d 638. Plaintiff should not anticipate a defense and undertake to avoid it. Scott v. Jordan, 235 N.C. 244, 69 S.E.2d 557.

It does not affirmatively appear from the complaint that defendants have been relieved of liability for their negligence by the negligence of others. No evidence has been offered. We cannot foretell what it may establish.

The judgment sustaining the demurrer is

Reversed.