{
  "id": 8547841,
  "name": "AUSTIN CHERRY v. JESSIE SMALLWOOD",
  "name_abbreviation": "Cherry v. Smallwood",
  "decision_date": "1969-12-17",
  "docket_number": "No. 696SC411",
  "first_page": "56",
  "last_page": "58",
  "citations": [
    {
      "type": "official",
      "cite": "7 N.C. App. 56"
    }
  ],
  "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": "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": {
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    "simhash": "1:a149b4a220c546d0",
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  "last_updated": "2023-07-14T21:45:53.911218+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "MoRRis and Hedriok, JJ., concur."
    ],
    "parties": [
      "AUSTIN CHERRY v. JESSIE SMALLWOOD"
    ],
    "opinions": [
      {
        "text": "Mallabd, C.J.\nPlaintiff\u2019s evidence tended to show these facts: On the night of 3 September 1967 plaintiff, while riding in the front seat of an automobile owned and operated by the defendant who was his brother-in-law, was injured. There were two other persons in the back seat of the automobile. Defendant, as an adverse witness for plaintiff, testified:\n\u201cI was on the way taking my brother-in-law home and the other two fellows and I was driving along and the first thing I knew the car pulled over in the ditch, and I stepped on the gas to try to pull it back over in the road and I went over.\nI don\u2019t know whether there was anything mechanically wrong with my automobile, but I feel like it was. I have not found anything mechanically wrong with the automobile since the wreck because I haven\u2019t checked it. At the time of this incident, my car had three tires in good shape and one was just a little faulty, but it won\u2019t bald. It had a little tread on it.\nI was not talking to the passengers in my automobile just before I ran off the road. . . .\nI was familiar with this road, the shape of the road, and where the curves were located. Where I ran off the road I was in a sharp curve. I do not know whether the road curved to my left or my right. I don\u2019t remember whether I ran off the road on my right side or on my left-hand side.\u201d\nOn cross-examination the defendant, in replying to the question of what caused him to run off the road, said:\n\u201cWell, there was some sand down there, you know, where people had been going toward the road pulling the sand over. That is what I figured that it was, the sand.\u201d\nThe plaintiff testified:\n\u201cJessie Smallwood was talking to Chestnut Bonds and Jessie told him, \u2018You ought to be a lawyer, you talk so much.\u2019 About that time, the car went like that and it ran off the road and turned over on me. I don\u2019t know whether Jessie looked back when he was talking to Chestnut Bonds or not.\u201d\nThere was no evidence as to what road was involved or whether the road was wet or dry, paved or unpaved. Neither was there any evidence of defects in the road, mechanical defects in the vehicle, speed of the vehicle, or illness of the driver.\nIn the case of Greene v. Nichols, 274 N.C. 18, 161 S.E. 2d 521 (1968), Justice Sharp said:\n\u201cWhen a motor vehicle leaves the highway for no apparent cause, it is not for the court to imagine possible explanations. Prima facie, it may accept the normal and probable one of driver-negligence and leave it to the jury to determine the true cause after considering all the evidence- \u2014 that of defendant as well as plaintiff.\u201d\nApplying the above rule, we are of the opinion and so hold that the trial judge committed error in allowing the defendant\u2019s motion for judgment as of nonsuit.\nReversed.\nMoRRis and Hedriok, JJ., concur.",
        "type": "majority",
        "author": "Mallabd, C.J."
      }
    ],
    "attorneys": [
      "Jones, Jones <fe Jones by A. B. Harrington, Jr., for plaintiff appellant.",
      "Cherry & Cherry by Thomas L. Cherry for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "AUSTIN CHERRY v. JESSIE SMALLWOOD\nNo. 696SC411\n(Filed 17 December 1969)\nAutomobiles \u00a7\u00a7 44, 50\u2014 vehicle leaving road without apparent reason \u2014 driver negligence \u2014 res ipsa loquitur\nIn this action for personal injuries sustained by plaintiff while riding as a guest passenger in an automobile driven by defendant, plaintiff\u2019s evi-deuce tending to show that the automobile left the highway for no apparent reason and wrecked is held, sufficient to make out a 'prima facie case for the jury on the issue of the driver\u2019s negligence, notwithstanding there was no evidence as to what road was involved, or whether the road was wet or dry, paved or unpaved, and there was no evidence relating to defects in the road, mechanical defects in the vehicle, speed of the vehicle or illness of the driver.\nAppeal by plaintiff from Bundy, J., at the May 1969 Session of Superior Court held in BeRtie County.\nThis is an action to recover for personal injuries alleged to have been sustained by plaintiff, Austin Cherry, on 3 September 1967 while riding as a guest passenger in an automobile owned and operated by the defendant, Jessie Smallwood. Plaintiff alleges that defendant was actionably negligent in the operation of the automobile proximately resulting in injury to plaintiff.\nAt the close of plaintiff\u2019s evidence, defendant\u2019s motion for non-suit was granted. From judgment dismissing the action, plaintiff appeals.\nJones, Jones <fe Jones by A. B. Harrington, Jr., for plaintiff appellant.\nCherry & Cherry by Thomas L. Cherry for defendant appellee."
  },
  "file_name": "0056-01",
  "first_page_order": 78,
  "last_page_order": 80
}