Turner v. . Lipe

Connor, J. There was evidence at the trial of this action which was sufficient to support the allegations of the complaint which constitute the cause of action on which plaintiff demands judgment against the defendant. *629 The evidence for the plaintiff tended to sbow that the defendant, while driving his automobile, traversed the intersection of two highways in this State at a speed in excess of fifteen miles per hour, when his view of the highway which intersected the highway on which he was driving was obstructed. This was in violation of the statute (C. S., 2618), and was negligence per se. Albritton v. Hill, 190 N. C., 429, 130 S. E., 5. There was also evidence for the plaintiff tending to show that this negligence was the proximate cause of the collision between the defendant’s automobile and the automobile in which the plaintiff was riding, and of her resulting injuries. This evidence, although contradicted by evidence for the defendant, was properly submitted to the jury. There was no evidence, however, tending to show that the negligence of the defendant, as shown by the evidence and as found by the jury, was wanton, as that word has been defined by this Court. In Bailey v. R. R., 149 N. C., 169, 62 S. E., 912, it is said: “The term wanton negligence (whether correctly joined it is needless to discuss) always implies something more than a negligent act. This Court has said that the word ‘wanton’ implies turpitude and that the act is committed or omitted of willful, wicked purpose; that the term ‘willfully’ implies that the act is done knowingly and of stubborn purpose, but not of malice. S. v. Massey, 97 N. C., 468; S. v. Brigman, 94 N. C., 888.” In the absence of any evidence tending to support an affirmative answer to the second issue, it was error to submit that issue, at least without a peremptory instruction to the jury to answer the issue “No.” Whether or not, if there had been evidence tending to show that the negligence of the defendant was wanton, the answer to the second issue was sufficient to support the order that in the event execution to enforce the judgment against the property of the defendant should be returned unsatisfied in whole or in part, execution should be issued against his person, need not be decided in the instant case. See Foster v. Hyman, 197 N. C., 189, 148 S. E., 36, where the issue submitted to the jury and answered in the affirmative included the word “willful.” There is error in the judgment containing an order that if execution against the property of the defendant should be returned unsatisfied, in whole or in part, execution should be issued against his person. This order must be stricken from the judgment. It is so ordered. To that end, the action is remanded to the Superior Court of Davie County. Error.