{ "id": 8547410, "name": "SARAH A. BASDEN, Administratrix of the Estate of EDWARD DENNY BASDEN, Deceased v. MORRIS LEE SUTTON, Original Defendants and JOHN ISAAC COOPER and ARCHIE LEON LANIER, Additional Defendants", "name_abbreviation": "Basden v. Sutton", "decision_date": "1969-12-17", "docket_number": "No. 694SC414", "first_page": "6", "last_page": "10", "citations": [ { "type": "official", "cite": "7 N.C. App. 6" } ], "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": "133 S.E. 2d 499", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575817 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0647-01" ] }, { "cite": "157 S.E. 2d 347", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 690", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566573 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0690-01" ] }, { "cite": "55 S.E. 2d 462", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "230 N.C. 707", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632073 ], "year": 1949, "opinion_index": 0, "case_paths": [ "/nc/230/0707-01" ] } ], "analysis": { "cardinality": 553, "char_count": 10563, "ocr_confidence": 0.576, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.2058394138036619 }, "sha256": "9305f75a818f3a950dd6584d0f0426c0b942a0afc650f9eec6ec1f9c090a28d8", "simhash": "1:574225738c0c3cba", "word_count": 1868 }, "last_updated": "2023-07-14T21:45:53.911218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MallaRD, C.J., and Hedrici\u00ed, J., concur." ], "parties": [ "SARAH A. BASDEN, Administratrix of the Estate of EDWARD DENNY BASDEN, Deceased v. MORRIS LEE SUTTON, Original Defendants and JOHN ISAAC COOPER and ARCHIE LEON LANIER, Additional Defendants" ], "opinions": [ { "text": "MORRIS, J.\nPlaintiff\u2019s exception and assignment of error presents two questions on appeal: (1) Did plaintiff offer sufficient evidence to make out a prima facie case of actionable negligence against the defendant? and (2) If so, does plaintiff\u2019s evidence establish the contributory negligence of her intestate as a matter of law?\nThe law imposes upon a motorist certain positive duties and requires of him constant care and attention.\n\u201cHe must at all times operate his vehicle with due caution and circumspection, with due regard for the rights and safety of others, and at such speed and in such a manner as will not endanger or be likely to endanger the lives or property of others. G.S. 20-140; . . .\nFie must operate his vehicle at a reasonable rate of speed, keep a proper lookout for persons on or near the highway, Cox v. Lee, ante [230 N.C.], 155, decrease his speed when any special hazard exists with respect to pedestrians, G.S. 20-141 (c) . . .\u201d Williams v. Henderson, 230 N.C. 707, 55 S.E. 2d 462 (1949).\nThere was evidence here that Sutton was operating his car at a speed of about 60 miles per hour at a time when the highway was wet, when it was raining, and at a place where the posted speed limit was 55 miles per hour. G.S. 20-141 (b)(4) makes it unlawful, in this circumstance, to operate a passenger car in excess of 55 miles per hour. A violation of G.S. 20-141 (b) (4) is negligence per se. Price v. Miller, 271 N.C. 690, 157 S.E. 2d 347 (1967).\nWe think the plaintiff offered sufficient evidence of actionable negligence on the part of defendant Sutton to carry the case to the jury.\nThe crucial question remains of the contributory negligence as a matter of law of plaintiff\u2019s intestate.\n\u201cThe law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided, (citations omitted.)\u201d Rosser v. Smith, 260 N.C. 647, 133 S.E. 2d 499 (1963).\nPlaintiff\u2019s own evidence shows that her intestate was standing on the shoulder of the road when the Sutton car was seen approaching at a rapid rate of speed. His body was found in the west lane of the highway partially under the Sutton car. The conclusion is inescapable that he left a position of safety and placed himself in a position of danger with full knowledge of all the circumstances and the danger inherent in attempting to remove tobacco until the approaching car had passed. The evidence is that one of his companions jumped from the path of the oncoming car and one went in the field. Plaintiff\u2019s intestate failed to exercise ordinary care to protect himself from injury.\nIt is manifest from plaintiff\u2019s own evidence, which is all the evidence, that the negligence of her intestate was at least a proximate cause of his injuries and death. In our opinion, no other conclusion can reasonably be drawn. The judgment of the trial court allowing the motion for nonsuit must, therefore, be\nAffirmed.\nMallaRD, C.J., and Hedrici\u00ed, J., concur.", "type": "majority", "author": "MORRIS, J." } ], "attorneys": [ "Wallace, Langley and Barwick by B. S. Langley and F. E. Wallace, Jr., for plaintiff appellant.", "Marshall and Williams by Lonnie B. Williams for original defendant Sutton appellee.", "Gavin and Gavin by Vance B. Gavin and Rivers D. Johnson, Jr., for additional defendants." ], "corrections": "", "head_matter": "SARAH A. BASDEN, Administratrix of the Estate of EDWARD DENNY BASDEN, Deceased v. MORRIS LEE SUTTON, Original Defendants and JOHN ISAAC COOPER and ARCHIE LEON LANIER, Additional Defendants\nNo. 694SC414\n(Filed 17 December 1969)\n1. Automobiles \u00a7 51\u2014 accident case \u2014 excessive speed \u2014 wet highway \u2014 nonsuit\nEvidence tending to show that, at the time defendant\u2019s automobile struck plaintiff\u2019s intestate, the defendant was driving at a speed of 60 mph in a 55 mph zone, that the highway was wet, and that it was nighttime and raining, held, sufficient to make out a prima facie case of defendant\u2019s negligence in driving in excess of 55 mph. G.S. 20-141(b) (4).\n2. Automobiles \u00a7 SO\u2014 speed restriction \u2014 55 mph\nA violation of G.S. 20-141(b) (4) relating to the 55 mph speed restriction is negligence per se.\nS. Negligence \u00a7 13\u2014 contributory negligence \u2014 duty to use ordinary care\nThe law imposes upon a person sui juris the duty to use ordinary care to protect himself from injury, and the degree of such care should be commensurate with the danger to be avoided.\n4. Automobiles \u00a7 83\u2014 accident case \u2014 contributory negligence \u2014 pedestrian \u2014 nonsuit\nIn an action by an administrator to recover damages for the wrongful death of her intestate, the administrator\u2019s evidence is held sufficient to establish the contributory negligence of her intestate as a matter of law, where it tended to show that the intestate was assisting several persons in removing tobacco that had fallen on the highway from an overturned truck, that the intestate was last seen standing on the shoulder of the highway as defendant\u2019s car approached at a rapid rate of speed, and that after the accident the intestate\u2019s body was found in the west lane of the highway under tobacco and partially under the defendant\u2019s car.\nAppeal by plaintiffs from Cohoon, J., 10 March 1969 Civil Session, Duplin County Superior Court.\nPlaintiff seeks to recover damages for the wrongful death of her intestate. It was stipulated that plaintiff is the duly qualified admin-istratrix of the estate of Edward Denny Basden; that Edward Denny Basden died on the night of 2 October 1964; that on that night, John Isaac Cooper was operating a pickup truck as the agent of Archie Leon Lanier and within the scope of his employment; that Archie Leon Lanier was the owner of the pickup truck; that at the time of the trip leading up to the accident, Norman Whaley and Edward Denny Basden were riding in the truck which was pulling a trailer; that Whaley had his tobacco in the truck and Cooper and Basden had their respective loads of tobacco on the trailer in separate piles; that the truck was being driven to Wilson, North Carolina, so that the tobacco of all three could be sold on the Wilson market; that Lanier, as landlord, had an interest in the tobacco of Cooper and Whaley.\nAdditional defendants Cooper and Lanier were brought in by motion of original defendant Sutton upon his cross action against them for contribution.\nThe evidence, viewed in the light most favorable to plaintiff, \u25a0tends to show:\nN.C. Highway 111 runs in a north-south direction from Kenans-Wille northerly to Goldsboro. North of the scene of the accident complained of is a slight curve. From the curve to the collision scene is four-tenths of a mile. From the collision scene south the road is straight but is uphill. The paved portion of the road is 20 feet 7 inches wide, and the shoulder is 12 feet 10 inches wide. The truck in which plaintiff\u2019s intestate had been a passenger was headed in a northerly direction, and had come down the hill toward the Lane house which was situate on the east side of the highway. The highway was wet, and it was raining. The truck\u2019s headlights were on low .beam. The trailer, attached to the truck \u201cswung to the right and went back to the left and popped two bolts in the tongue and over-burned.\u201d The tobacco landed on the left-hand lane, or southbound .lane. A clear plastic cover, which had been on the bottom of the trailer, was on top of the tobacco. The pile of tobacco on the highway was about 3% feet high and about 8 feet wide. The truck and trailer were pulled to the side of the road with about a foot of the truck and about a foot of the trailer on the paved portion of the road. The headlights remained on low beam and the trailer re\u25a0mained overturned. The occupants of the truck got out and were standing at the rear thereof deciding what to do when a motorist came by, stopped, and left with them a flashlight while he went to call a patrolman. One of the truck passengers went to get another truck with which to haul the tobacco away from the scene. Plaintiff\u2019s intestate, Cooper, and Whaley began moving the tobacco from the highway to the shoulder of the road. Whaley testified that \u201cIn between cars we laid tobacco aside and Mr. Basden would catch them coming from the south and I catch them coming back. I mean by \u2018catch them\u2019 to flag them. As to how we flagged them, we would go to the back of the pickup and wave the light back and forth across the road.\u201d The distance from the pile of tobacco and the rear of the pickup truck was 80 feet 4 inches. At least two cars had come from the north after the first motorist stopped and before the Sutton car. To flag the cars from the north Whaley stood in the left lane at the rear of the pickup truck and waved the light back and forth across the road. There was sufficient room for vehicles to get by the truck and tobacco. Vehicles coming from the north remained on the paved portion and took the east lane of traffic. The four vehicles which were flagged going north followed their same lane of traffic and cut around the pickup a little bit. At the times cars were not coming, the flashlight was used for the purpose of furnishing light to lift the tobacco off the highway onto the shoulder of the road. When the Sutton car was first seen approaching, the three men were at the south end of the pile of tobacco. \u201cAll of us were standing on the shoulder of the road.\u201d Basden handed Whaley the light and said \u201ccatch that one\u201d. Whaley saw the headlights of the Sutton car as he crossed the river bridge, which is \u201cjust before that curve\u201d. \u201cWhen you come off that bridge you take the curve.\u201d Whaley testified that he observed the Sutton car approach for better than one-half a mile and, in his opinion, its speed was about 60 miles per hour. The Sutton car did not reduce its speed. When Whaley started flagging, the Sutton car was four-tenths of a mile away. When the Sutton car got pretty close to him, about 20 feet, he jumped off the road. The Sutton car passed him and struck the pile of tobacco, went up> and came down and settled on top of the tobacco. Whaley next remembered Cooper coming from the field. He testified \u201cThe last time I saw Mr. Basden he was on the shoulder of the road. Cooper, the last time I saw him before the accident occixrred, was on the shoulder too.\u201d Basden\u2019s body was found on the west side of the highway under tobacco and partially under the front of the Sutton car. There were no marks on the pavement leading from the tobacco back to the north.\nAt the close of plaintiff\u2019s evidence, defendant\u2019s motion for judgment as of involuntary nonsuit was granted, and plaintiff appealed, assigning this as the only error.\nWallace, Langley and Barwick by B. S. Langley and F. E. Wallace, Jr., for plaintiff appellant.\nMarshall and Williams by Lonnie B. Williams for original defendant Sutton appellee.\nGavin and Gavin by Vance B. Gavin and Rivers D. Johnson, Jr., for additional defendants." }, "file_name": "0006-01", "first_page_order": 28, "last_page_order": 32 }