Wolfe v. Farmers Cooperative Exchange, Inc.
Wolfe v. Farmers Cooperative Exchange, Inc.
Opinion of the Court
Defendant assigns as error the denial of its motion for judgment of compulsory nonsuit made 'at the close of all the evidence.
Plaintiff’s evidence, and defendant’s evidence favorable to her, shows these facts:
About noon on 31 May 1960 Phyllis Wolfe, a four-year-old girl, followed her eleven-year-old sister, Patricia Wolfe, from their home across a rural paved road to -a mailbox, where the mail carrier had stopped his automobile. At that point the paved road is 18 feet wide, with six-foot dirt shoulders on each side. The distance from the pavement to the mailbox is seven feet. At this point the road is flat and straight for a quarter of a mile on each side of the mailbox. When the mail carrier’s automobile began pulling away in a direction from Smithfleld, Patricia looked to the right and saw defendant’s truck coming along the road toward Smithfleld about the length of a football field away. Patricia then turned to the left, and saw Phyllis right behind her. She then turned to the right to see where defendant’s truck was, and when she turned again to the left, she_ saw Phyllis with her head down and kicking a pebble, walking slowly across the road. Patricia noticed no change in the speed of defendant’s truck from the first time she saw it: she heard no horn blow. When Phyllis had crossed the white line in the center of the road, the right side of the bumper of defendant’s truck hit her, and in Patricia’s words, “I just saw her flying in the air.” Defendant’s truck went 174 feet from where it struck the little girl before it stopped. When it stopped, Phyllis’ body was about 27 feet from where she was struck and about two feet from the white center line of the road on defendant’s side of the road. In the collision Phyllis sustained, 'among other injuries, a crushed head and a broken neck, which resulted in her immediate death. Defendant’s truck at the time was being driven by its employee, O. F. Barbour, in the scope and course of his employment.
Defendant’s evidence shows these facts: Its salesman, O. F. Barbour, was driving its truck 40 or 45 miles an hour on his right side of the
In our opinion, the court properly overruled defendant’s motion for judgment of compulsory nonsuit. This is in accord with our decisions in Goss v. Williams, 196 N.C. 213, 145 S.E. 169; Moore v. Powell, 205 N.C. 636, 172 S.E. 327; Kelly v. Hunsucker, 211 N.C. 153, 189 S.E. 664; Butler v. Allen, 233 N.C. 484, 64 S.E. 2d 561; Brunson v. Gainey, 245 N.C. 152, 95 S.E. 2d 514; Cassetta v. Compton, 256 N.C. 71, 123 S.E. 2d 222; Ennis v. Dupree, ante 141, . S.E. 2d.
The two assignments of error to the admission of evidence are overruled, for the reason that no prejudicial error is made to appear sufficient to warrant a new trial. The assignment of error to the charge is broadside, and in addition it is not carried forward and discussed in the brief.
In the trial below we find
No error.
Reference
- Full Case Name
- MRS RUBY O. WOLFE, Administratrix of PHYLLIS M. WOLFE v. FARMERS COOPERATIVE EXCHANGE, INCORPORATED
- Status
- Published