Gillis v. Transit Corp. of Norfolk

Adams, J. Tbe plaintiff brought suit to recover damages for personal injury alleged to bave been caused by tbe negligence of tbe defendant. Sbe introduced evidence tending to sbow tbat about 8 p.m. on 12 June, 1926, sbe was going from Halifax to Weldon in a Dodge sedan owned by ber father and driven by another; tbat her father and her brother were on tbe front seat with tbe driver and tbat sbe, Mrs. Marks, and two others occupied tbe seat in tbe rear; tbat tbe car passed over a bridge and came to a stop on tbe right side of tbe road; and tbat tbe defendant’s bus, moving in tbe opposite direction, came round tbe curve at tbe rate of forty or forty-five miles an hour, struck tbe car, burled it against tbe bridge, and injured tbe plaintiff. There was evidence for tbe defendant tending to show tbat tbe speed of tbe bus, when approaching tbe bridge, did not exceed fifteen miles an hour; tbat tbe driver bad tbe bus under control, gave tbe usual signals and observed due care; tbat tbe sedan came down tbe opposite bill very rapidly, ran upon tbe bridge “more than midway tbe road,” lurched, swerved toward tbe other side, and caused tbe collision. There was no plea of contributory negligence, and tbe two issues of negligence and compensatory damages were answered in favor of tbe plaintiff, for whom judgment was accordingly given. *348 With respect to negligence the allegations are these: (1) “When the ear in which the plaintiff was riding had crossed the second branch between Weldon and Halifax, known as Dry Pond Rranch, the car stopped on the extreme right-hand side of the highway to await the passing of the bus of the defendant, which was approaching at a rapid and unlawful rate of speed, to wit, between 40 and 45 miles per hour; (2) that the defendant’s bus was being driven at an unlawful rate of speed and was negligently, wantonly and recklessly driven into the car in which the plaintiff was riding, wrecking the car and injuring the plaintiff; (3) that the defendant was guilty of gross, wilful, criminal and wanton negligence and was utterly and criminally indifferent to the rights of the plaintiff.” An allegation of negligence must be sufficiently specific to give information of the particular acts complained of; a general allegation without such particularity does not set out the nature of the plaintiff’s demand sufficiently to enable the defendant to prepare his defense. Conley v. R. R., 109 N. C., 692; Lassiter v. Roper, 114 N. C., 17. Under this principle the only specific allegations of negligence are that the bus was driven at an unlawful rate of speed and on the wrong side of the road at the time of the collision. As to the latter allegation this instruction was given the jury: “If a person in operating a motor vehicle hits another car or person to the left of the center of the road in the direction he is going, that of itself is negligence, irrespective of the speed of the car.” The appellant excepted. The instruction was not given in the terms of the statute, but when considered in connection with the allegations and the evidence, we cannot say that it constitutes reversible error. The amended statute is: “That all operators of motor vehicles on the public roads, in meeting a motor vehicle in operation, shall pass on the right of the road in such a manner that all said vehicles, and the load thereof, shall be on the right of the center of the road.” Public Laws 1924, Extra Session, ch. 61, sec. a. The breach of a statute is negligence per se, but there must be a causal connection between the disregard of the statute and the injury inflicted. Ledbetter v. English, 166 N. C., 125. After giving the foregoing instruction and referring to the statute regulating the rate of speed, the judge properly instructed the jury as to negligence in each respect and applied the doctrine of proximate cause to each phase of the alleged negligence. The eighth exception is without merit. The first part of the instruction to which it is addressed has reference to the question whether the ■ collision was an accident, and lays down the implied proposition that it was not an accident if the defendant was negligent in any particular, which is correct; and the second part is addressed to the sole negligence *349 of the driver of the Dodge, car. If the collision was due solely to his negligence, of course it was not due to any negligence on the part of the defendant. So with respect to exceptions 15% and 17. The appellant says the trial court failed to tell the jury that in order to recover the plaintiff must prove the particular acts of negligence set out in the complaint; but the evidence points only to the two phases alleged in the complaint, and we do not see that the jury could have been misled in this respect. Besides, the issue was confined to “the negligence of the defendant as alleged in the complaint.” The instruction concerning “any degree of causal negligence” is sustained in Earwood, v. R. R., 192 N. C., 27, and White v. Realty Co., 182 N. C., 536. The appellant complains that the jury was not instructed to answer the issue as to negligence in the negative unless it was found that the sedan had stopped on the right hand side of the road and was struck by the bus while in that position. There was evidence tending to show that the car had stopped, also that it was slowly moving; and paragraphs 3 and 4 of the complaint are sufficient to cover these two phases of the evidence. The instruction was therefore properly refused. There was error, however, in the instruction as to the measure of damages. At the trial two other suits were tried with the one now under consideration, one being that of Jennie S. Marks. The instruction complained of was as follows: “The measure of damages which I will lay down to you controls the second issue (as to the compensatory damages of Mrs. Marks) and the fifth issue (as to the compensatory damages of the plaintiff), because the measure of damages is the same in each case. If either of these plaintiffs is entitled to recover at all she is entitled to recover one compensation in a lump sum for all damages, past and prospective, which are the immediate results of the negligence of the defendant. These are said to embrace loss of bodily or mental powers, suffering both body and mind, decreased capacity for labor, loss of time, medical expenses, and nursing expenses.” The plaintiff is a minor, and there is no evidence of her emancipation, but the jury was permitted to consider as an element of damages for the injury suffered both her loss of time and her diminished earning capacity during her minority. A statement of the opposite principle with citation of authorities is given in Shipp v. Stage Lines, 192 N. C., 475. For this error there must be a New trial.