{
  "id": 8553033,
  "name": "IRIS BAREFOOT DAVIS, ADMINISTRATRIX of the Estate of JOHN ALLEN DAVIS v. REBECCA W. PEACOCK, Administratrix of the Estate of JERRY CLARENCE PEACOCK",
  "name_abbreviation": "Davis v. Peacock",
  "decision_date": "1970-12-30",
  "docket_number": "No. 704SC484",
  "first_page": "256",
  "last_page": "259",
  "citations": [
    {
      "type": "official",
      "cite": "10 N.C. App. 256"
    }
  ],
  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "141 S.E. 2d 609",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1965,
      "opinion_index": 0
    },
    {
      "cite": "264 N.C. 314",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8572776
      ],
      "year": 1965,
      "opinion_index": 0,
      "case_paths": [
        "/nc/264/0314-01"
      ]
    },
    {
      "cite": "100 S.E. 2d 258",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1957,
      "opinion_index": 0
    },
    {
      "cite": "247 N.C. 47",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8624963
      ],
      "year": 1957,
      "opinion_index": 0,
      "case_paths": [
        "/nc/247/0047-01"
      ]
    },
    {
      "cite": "161 S.E. 2d 521",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1968,
      "opinion_index": 0
    },
    {
      "cite": "274 N.C. 18",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559321
      ],
      "year": 1968,
      "opinion_index": 0,
      "case_paths": [
        "/nc/274/0018-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 432,
    "char_count": 7694,
    "ocr_confidence": 0.518,
    "pagerank": {
      "raw": 2.1011900981159953e-07,
      "percentile": 0.7618467331493072
    },
    "sha256": "5ffdb165a8f82c656d1d29e38daf57f7f2441ebf8abf386cacf5e7a927b01561",
    "simhash": "1:bdee795e76cded37",
    "word_count": 1325
  },
  "last_updated": "2023-07-14T19:51:53.441044+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Graham concur."
    ],
    "parties": [
      "IRIS BAREFOOT DAVIS, ADMINISTRATRIX of the Estate of JOHN ALLEN DAVIS v. REBECCA W. PEACOCK, Administratrix of the Estate of JERRY CLARENCE PEACOCK"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nThe actual motion for a directed verdict is not contained in the record, and the judgment allowing this motion does not state upon what grounds it was made or allowed. The plaintiff makes no contention that the motion did not state the specific grounds therefor as required by statute; therefore, we assume that the motion complied with Rule 50 of the Rules of Civil Procedure. From the briefs of both parties, we also assume that the motion was made on the grounds that on the facts and the law, the plaintiff failed to show a right to relief. Litigants would be well advised to include in the record the specific grounds stated in the motion for a directed verdict. A failure to do so could result in a dismissal of the appeal.\nThe evidence and stipulations tended to show that Peacock and Davis both died on 7 March 1967 between 3:30 and 4:00 a.m. as a result of the wreck of the 1966 Mercury automobile owned by Peacock. Peacock and Davis left Davis\u2019 home on the night of 6 March 1967 at about 7:30 p.m. in the 1966 Mercury to go to a fish stew at Richlands. Between 3:30 and 4:00 a.m. on the morning of 7 March 1967, the driver of Peacock\u2019s Mercury, while traveling North on U. S. Highway #17, was driving at a speed in excess of sixty miles per hour at a point about two miles1 South of Holly Ridge. The automobile went out of control and while skidding for about two hundred feet, turned over two or three times before coming to rest on its top at a point about twenty to twenty-five feet from the west edge of the highway. Peacock and Davis were thrown out of the automobile and were found on the ground about twenty to thirty feet from the automobile and about the same distance from each other. There was no direct testimony as to who was driving. The right trouser leg of Davis was hanging from the right front passenger door of the automobile. Some four hours after the accident and after the automobile had been turned over and pulled by a wrecker vehicle to Jacksonville, a shoe, identified as Peacock\u2019s shoe, was found to be \u201cwedged up under the gas peddle and the brake; it looked like it was mashed down on it.\u201d There was also evidence that Peacock customarily wore his shoes with the laces untied. There was ample circumstantial evidence as to the actionable negligence of the driver of the 1966 Mercury at the time of the accident to require submission of the case to the jury. Also, there was evidence tending to show that plaintiff\u2019s intestate was earning money in excess of that required for his support. Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521 (1968); G.S. 28-174.\nThe question on which decision turns in this case is whether the evidentiary facts that Peacock owned the vehicle involved, that one of his shoes was wedged under the gas pedal and brake, and that Davis\u2019 right trouser leg was torn off and hanging on the door on the passenger\u2019s side of the front seat are sufficient to permit the jury to find that Peacock was the operator of the automobile at the time of the accident.\nIn Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258 (1957), it was held that the ownership of an automobile by an occupant thereof at the time of a wreck does not raise a presumption that the owner was the driver. In 1 Strong, N. C. Index 2d, Automobiles, \u00a7 66, the rule is stated as follows:\n\u201cThe identity of the driver of a vehicle may be established by circumstantial evidence, either alone or in combination with direct evidence. However, the facts and circumstances must establish identity as a logical and reasonable inference and not merely raise a conjecture, guess, or choice of possibilities.\u201d\nSee also Greene v. Nichols, supra, and Crisp v. Medlin, 264 N.C. 314, 141 S.E. 2d 609 (1965).\nPlaintiff has other assignments of error which we do not discuss since they may not recur on a new trial.\nThe ownership of the automobile by Peacock, the location of Peacock\u2019s shoe wedged under the gas pedal and the brake, and the location of the right trouser leg of Davis on the right front passenger door of the automobile all point in the same direction and are sufficient to permit the jury to find as a logical and reasonable inference from these established facts that Peacock was the operator of the automobile at the time of the accident. The judgment of the superior court allowing the motion for a directed verdict and dismissing the action is reversed.\nReversed.\nJudges Parker and Graham concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Joseph C. Olschner, and Bailey & Robinson by Edward C. Bailey for plaintiff appellant.",
      "Warlick & Milsted by Alex Warlick, Jr., for defendant ap-pellee."
    ],
    "corrections": "",
    "head_matter": "IRIS BAREFOOT DAVIS, ADMINISTRATRIX of the Estate of JOHN ALLEN DAVIS v. REBECCA W. PEACOCK, Administratrix of the Estate of JERRY CLARENCE PEACOCK\nNo. 704SC484\n(Filed 30 December 1970)\nAutomobiles \u00a7 66\u2014 identity of driver \u2014 sufficiency of evidence\nEvidence that the administratrix\u2019 intestate owned the automobile involved in the accident, that one of the intestate\u2019s shoes was wedged under the gas pedal and. brake of the automobile, and that the right trouser leg from a pair of pants belonging to another person was torn off and hanging on the door of the passenger\u2019s side of the front seat, held sufficient to support a jury finding that the intestate was the operator of the vehicle at the time of the accident.\nAppeal by plaintiff from Godwin, Special Superior Court Judge, March 1970 Session of Superior Court held in Onslow County.\nPlaintiff, Iris Barefoot Davis, Administratrix of the Estate of John Allen Davis, seeks to recover damages from the defendant, Rebecca W. Peacock, Administratrix of the Estate of Jerry Clarence Peacock, for the alleged wrongful death of her intestate, John Allen Davis (Davis).\nPlaintiff alleged in her complaint that the death of her intestate was proximately caused by the actionable negligence of defendant\u2019s intestate, Jerry Clarence Peacock (Peacock), in the operation of Peacock\u2019s 1966 Mercury automobile on 7 March 1967.\nDefendant denied that her intestate was operating the automobile and denied all of the material allegations of the complaint.\nThe parties stipulated that on 7 March 1967 Peacock was the owner of the 1966 Mercury automobile (Mercury) described in the pleadings; that Davis \u201cdied as a proximate result of injuries sustained by him in the wreck of the 1966 model Mercury automobile owned by the defendant intestate\u201d; that \u201cdefendant may at her option amend her Answer to plead an alternate defense of contributory negligence\u201d (the defendant did not exercise this option) ; and that photographs marked D-l, D-2, P-2, P-3, P-4 and P-5 could be received in evidence without further identification for the purpose of illustrating the testimony of witnesses.\nThe parties agreed to the constitution of \u201cthe case on appeal to the North Carolina Court of Appeals.\u201d In this record there appears what is denominated \u201cStatement of Case\u201d in which it is asserted that \u201c [p] laintiff\u2019s intestate and defendant\u2019s intestate were both killed in the accident.\u201d\nAt the close of the plaintiff\u2019s evidence, the defendant made a motion for a \u201cdirected verdict\u201d which was allowed. The judgment was as follows:\n\u201cThis Action came on for trial before a Court and a jury, the Honorable A. Pilston Godwin, Jr., Judge Presiding, and on motion of the defendant for a directed verdict pursuant to Rule 50 (a) of The Rules of Civil Procedure, made after Plaintiff had rested her case, the Court directed a verdict for Defendant;\nIt is, Therefore, Ordered and Adjudged that the plaintiff take nothing; that the action be dismissed on the merits; and that the Defendant recover of the Plaintiff her costs in this action.\u201d\nThe plaintiff appealed to the Court of Appeals.\nJoseph C. Olschner, and Bailey & Robinson by Edward C. Bailey for plaintiff appellant.\nWarlick & Milsted by Alex Warlick, Jr., for defendant ap-pellee."
  },
  "file_name": "0256-01",
  "first_page_order": 280,
  "last_page_order": 283
}