Capps v. Smith

Per Curiam. Plaintiff, alleging that her intestate’s death was caused by the joint and concurring negligence of defendant Smith and M. D.. Capps, originally sued Smith and Capps’ administrator. Although the allegations of Capps’ negligence remain in the complaint, his administrator had been eliminated from the case when it reached us. The administrator of an unemancipated minor child killed by the negligence of his parent has no cause of action against the parent for the wrongful death of his intestate. Lewis v. Insurance Co., 243 N.C. 55, 89 S.E. 2d 788; Goldsmith v. Samet, 201 N.C. 574, 160 S.E. 835. ■ Plaintiff’s specifications of negligence against ;Smith are that he failed to keep a proper lookout, drove at a speed in excess of fifty-five miles per hour, and failed to take appropriate action to avoid the collision which he should have anticipated when he saw, or should have seen, the Capps truck go off the highway. Although plaintiff alleges elsewhere in the complaint, that the collision occurred in the center of the road, she does not specifically allege that defendant operated the Plymouth to his left of the center of the highway. ' Plaintiff’s' estimates of speed, distance, and time are incompatible because they are mathematically impossible. If two vehicles are 100 feet .apart and one of them is traveling forty-five miles per hour and the other sixty miles per hour, they must, of course, necessarily meet in ■less than three seconds- — -as a matter of fact, in approximately 0.65 second. Even if one of the vehicles were at a dead stop, the vehicle traveling sixty miles per hour would traverse the distance of 100 feet in approximately 1.14 seconds. Understandably, plaintiff’s observations, made, under stress and apprehension, are unlikely to have been 'accu *123 rate. All the evidence tends to show that when the Capps truck returned to the pavement, it came across the road directly in front of defendant’s approaching automobile, and that the collision occurred on the paved portion of the highway. If, as we must, we accept plaintiff’s estimate of speed and distance, defendant could not have averted an encounter with the truck. That he took no evasive action in the time at his disposal — especially when his view of the truck was obstructed by another car approaching in front of it — is not evidence of actionable negligence. Forgy v. Schwartz, 262 N.C. 185, 136 S.E. 2d 668. Defendant did not see the track leave the road; but, even if he had, there is no reason to suppose he could have escaped the crash either by stopping or by turning to the right. He could not have anticipated when, where, or even whether the track would cut back across the highway. In retrospect, it is clear that the only effective action defendant could have taken would have been to increase his speed so as to have passed the Capps truck before it returned to the road. On cross-examination plaintiff conceded that she could not tell whether defendant was going over fifty miles per hour. If we assume; however, that he was traveling sixty miles per hour, and that he was in the center of the highway, (the undisputed physical facts belie the latter), neither his speed nor his position on the highway was a proximate cause of the collision; Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111; Butner v. Spease, 217 N.C. 82, 6 S.E. 2d 808. Post hoc, ergo prop-ter hoc. When the Capps truck suddenly came across the highway directly in front of him, defendant could not have avoided the impact had his speed.been fifty-five miles per hour or less. Indeed, had he been stopped in the ditch on his right at that point, the collision would nevertheless have occurred. Considering all the evidence,in the light most favorable to plaintiff, the motion for nonsuit was properly sustained. Tew v. Runnels, 249 N.C. 1, 105 S.E. 2d 108. It is plain that defendant could have prevented the wreck only by being elsewhere,at the time. “ (N) egligence . . . involves more than being at a particular place at a particular time.” Bobbitt, J., in Henderson v. Henderson, 239 N.C. 487, 492, 80 S.E. 2d 383, 386. The judgment of nonsuit is Affirmed.