{ "id": 8556845, "name": "LEWIS ALFRED EVANS, INCOMPETENT, BY HIS GUARDIAN AD LITEM LORENZO EVANS v. JESSE EDWARD CARNEY", "name_abbreviation": "Evans ex rel. Evans v. Carney", "decision_date": "1976-06-02", "docket_number": "No. 763SC43", "first_page": "611", "last_page": "614", "citations": [ { "type": "official", "cite": "29 N.C. App. 611" } ], "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": "214 S.E. 2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 N.C. App. 68", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549560 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc-app/26/0068-01" ] }, { "cite": "179 S.E. 2d 816", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "10 N.C. App. 592", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555018 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc-app/10/0592-01" ] }, { "cite": "179 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] } ], "analysis": { "cardinality": 341, "char_count": 5294, "ocr_confidence": 0.626, "pagerank": { "raw": 6.553285487460147e-08, "percentile": 0.4017400242253506 }, "sha256": "d32e607307d81d8236ab71ce21780a98b2eb19ae081361166df4740a3c333984", "simhash": "1:3387fca785158a62", "word_count": 886 }, "last_updated": "2023-07-14T16:29:22.308082+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge Brock and Judge Hedrick concur." ], "parties": [ "LEWIS ALFRED EVANS, INCOMPETENT, BY HIS GUARDIAN AD LITEM LORENZO EVANS v. JESSE EDWARD CARNEY" ], "opinions": [ { "text": "CLARK, Judge.\nThe principal issue is whether the trial court erred in granting defendant\u2019s G.S. 1A-1, Rule 50(a) motion for directed verdict. This motion is directed to the sufficiency of the evidence to justify a verdict for the plaintiff when considered in the light most favorable to him. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396 (1971) ; Maness v. Construction Co., 10 N.C. App. 592, 179 S.E. 2d 816 (1971). The granting of this motion resulted in a judgment on the merits since the plaintiff, apparently having determined that he could not strengthen his case on retrial, made no attempt to preserve his rights by dismissal under Rule 41.\nThe plaintiff\u2019s ward left a position of safety on the median and suddenly ran onto the highway across the inside lane to the outside lane in front of the Miller car; there he apparently realized his peril and stopped so close that Mrs. Miller thought she could not avoid hitting him. At this time the front of defendant\u2019s car in the inside lane was beside the rear wheels of the Miller car, both traveling at a speed of about 50 miles per hour. Plaintiff\u2019s ward turned and darted back toward the median but was struck by defendant\u2019s car. Both cars were moving at a speed of about 73 feet per second. Though both Mrs. Miller and defendant should have seen and did see plaintiff\u2019s ward on the median a substantial distance away, neither could anticipate that he would suddenly run into the highway, and defendant\u2019s failure to do so was not negligence. Considering the evidence in the light most favorable to the plaintiff, there was no evidence of excessive speed, or failure to maintain a reasonable lookout or proper control, or the violation of any other rules of the road.\nTn a recent case, Hartsell v. Strickland, 26 N.C. App. 68, 214 S.E. 2d 598 (1975), the factual circumstances were somewhat similar in that a worker suddenly jumped onto the highway in front of defendant\u2019s oncoming car when he was startled by an explosion. The court affirmed a directed verdict for defendant on the ground that plaintiff failed to show primary negligence of the defendant.\nThere are many other cases with substantially similar circumstances wherein the North Carolina Supreme Court and this Court have found that plaintiff\u2019s evidence was not sufficient to justify a verdict in his favor. See 1 Strong, N. C. Index 2d, Automobiles, \u00a7 62.\nSince we find that plaintiff\u2019s evidence of negligence was insufficient, plaintiff\u2019s claim of error in the denial of his motion to assert the doctrine of last clear chance and in the exclusion of his evidence offered of his ward\u2019s mental incapacity, both relating to the issue of contributory negligence, are irrelevant.\nThe judgment for defendant is\nAffirmed.\nChief Judge Brock and Judge Hedrick concur.", "type": "majority", "author": "CLARK, Judge." } ], "attorneys": [ "James, Hite, Cavendish & Blount by Robert D. Rouse III for plaintiff appellant.", "Everett & Cheatham by James T. Cheatham and Edward J. Harper II for defendant appellee." ], "corrections": "", "head_matter": "LEWIS ALFRED EVANS, INCOMPETENT, BY HIS GUARDIAN AD LITEM LORENZO EVANS v. JESSE EDWARD CARNEY\nNo. 763SC43\n(Filed 2 June 1976)\nAutomobiles \u00a7 62\u2014 striking pedestrian \u2014 pedestrian moving from safe place into path of auto\nIn an action to recover for personal injuries sustained by plaintiff\u2019s ward when he was struck by defendant\u2019s automobile, the trial court properly granted defendant\u2019s motion for directed verdict where the evidence tended to show that plaintiff\u2019s ward left a position of safety on the median of the highway and suddenly ran onto the highway into the path of defendant\u2019s vehicle, and there was no evidence that defendant\u2019s speed was excessive, that he failed to maintain a reasonable lookout or proper control, or that he violated any other rules of the road.\nAppeal by plaintiff from Lanier, Judge. Judgment entered 9 September 1975, Superior Court, Pitt County. Heard in the Court of Appeals 3 May 1976.\nPlaintiff brought this action in which he alleged that his ward was struck by an automobile being driven by defendant. Plaintiff further alleged that the accident was caused by defendant\u2019s negligence and that plaintiff\u2019s ward had suffered severe injuries as a result. Defendant answered denying negligence and alleged that plaintiff\u2019s ward had been contributorily negligent.\nFor the plaintiff Leatrice Miller testified that she was driving at a speed of 50 m.p.h in the outside southbound lane of Highway No. 31, a four-lane highway separated by a median, and that defendant\u2019s car was following her; she saw plaintiff\u2019s ward run from the median across the inside lane, stop in front of her car, then turn and run back toward the median, but was struck by defendant\u2019s car in the inside lane.\nPlaintiff introduced defendant\u2019s deposition which tended to show that his car was even with Miller\u2019s back bumper; that suddenly plaintiff\u2019s ward ran in front of his car; that he swerved to the right but could not avoid hitting him. When the plaintiff\u2019s ward first ran into the road, he was about 18 feet in front of defendant\u2019s car.\nAt the conclusion of the plaintiff\u2019s evidence, plaintiff moved to amend his complaint to conform the pleadings to the evidence, and assert the doctrine of last clear chance, but the motion was denied. The court then granted defendant\u2019s motion for a directed verdict, and plaintiff appeals.\nJames, Hite, Cavendish & Blount by Robert D. Rouse III for plaintiff appellant.\nEverett & Cheatham by James T. Cheatham and Edward J. Harper II for defendant appellee." }, "file_name": "0611-01", "first_page_order": 643, "last_page_order": 646 }