{ "id": 8627097, "name": "RALPH THREATT, by His Next Friend, A. R. THREATT, et al., v. RAILWAY EXPRESS AGENCY, INC.", "name_abbreviation": "Threatt ex rel. Threatt v. Railway Express Agency, Inc.", "decision_date": "1942-04-29", "docket_number": "", "first_page": "211", "last_page": "213", "citations": [ { "type": "official", "cite": "221 N.C. 211" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "191 S. E., 358", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628393 ], "opinion_index": 0, "case_paths": [ "/nc/211/0632-01" ] }, { "cite": "191 S. E., 353", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "211 N. C., 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628228 ], "opinion_index": 0, "case_paths": [ "/nc/211/0591-01" ] }, { "cite": "219 N. C., 476", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624808 ], "opinion_index": 0, "case_paths": [ "/nc/219/0476-01" ] }, { "cite": "219 N. C., 25", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620873 ], "opinion_index": 0, "case_paths": [ "/nc/219/0025-01" ] }, { "cite": "166 S. E., 329", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "203 N. C., 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611371 ], "opinion_index": 0, "case_paths": [ "/nc/203/0381-01" ] }, { "cite": "161 S. E., 720", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N. C., 52", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623353 ], "opinion_index": 0, "case_paths": [ "/nc/202/0052-01" ] }, { "cite": "218 N. C., 283", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617206 ], "opinion_index": 0, "case_paths": [ "/nc/218/0283-01" ] }, { "cite": "158 S. E., 556", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "201 N. C., 26", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621823 ], "opinion_index": 0, "case_paths": [ "/nc/201/0026-01" ] }, { "cite": "135 S. E., 609", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "192 N. C., 827", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627446 ], "opinion_index": 0, "case_paths": [ "/nc/192/0827-01" ] }, { "cite": "200 S. E., 921", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "215 N. C., 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627923 ], "opinion_index": 0, "case_paths": [ "/nc/215/0048-01" ] }, { "cite": "147 S. E., 8", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N. C., 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629269 ], "opinion_index": 0, "case_paths": [ "/nc/196/0739-01" ] }, { "cite": "162 S. E., 557", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "202 N. C., 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625788 ], "opinion_index": 0, "case_paths": [ "/nc/202/0272-01" ] } ], "analysis": { "cardinality": 418, "char_count": 6745, "ocr_confidence": 0.49, "pagerank": { "raw": 1.1420408488207926e-07, "percentile": 0.5789204312683867 }, "sha256": "2dc9df0a6f4d9f160e11eb88efca7c3d868a88434359880048d16f8ac1baf45e", "simhash": "1:1b2306763e1d6358", "word_count": 1206 }, "last_updated": "2023-07-14T17:01:36.695844+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RALPH THREATT, by His Next Friend, A. R. THREATT, et al., v. RAILWAY EXPRESS AGENCY, INC." ], "opinions": [ { "text": "Stacy, C. J.\nThe question before us is the sufficiency of the evidence to carry the ease to the jury. The record suggests that the demurrer to the evidence should be sustained, if not upon the principal issue of liability, then upon the ground of contributory negligence. Swainey v. Tea Co., 202 N. C., 272, 162 S. E., 557; Miller v. Holland, 196 N. C., 739, 147 S. E., 8. Cf. Wooten v. Smith, 215 N. C., 48, 200 S. E., 921; Hood v. Bottling Co., 192 N. C., 827, 135 S. E., 609. Both the driver \u2022of the truck and the plaintiff were charged with the mutual and reciprocal duty to exercise reasonable care under the circumstances arising from the exigencies of traffic in the street. Moore v. R. R., 201 N. C., 26, 158 S. E., 556.\nThe allegation of negligence is, that the defendant drove its truck too near the plaintiff as he was standing in the street waiting for the traffic to pass or for the light to turn. The evidence could hardly be said to support the allegation. The defendant negatives any negligence, and the plaintiff makes out a case of contributory negligence. Van Dyke v. Atlantic Greyhound Corp., 218 N. C., 283, 10 S. E. (2d), 727; Tart v. R. R., 202 N. C., 52, 161 S. E., 720.\nThe plaintiff says the truck was moving \u201cslowly, very slowly.\u201d He must have known, then, that he was close, very close, to it. But whether the truck was standing still or moving slowly when plaintiff came into the street with his bicycle, the jury was left to speculate on whether the driver of the truck could see the precarious position of the plaintiff before the rear wheel struck him. Rountree v. Fountain, 203 N. C., 381, 166 S. E., 329. Without this, the case must fail. Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661. It is not enough that the driver of the truck saw the plaintiff in the street. He must have appreciated the danger in time to have avoided the injury in the exercise of reasonable prevision. Wellons v. Sherrin, 219 N. C., 476, 14 S. E. (2d), 426. Negligence is doing other than, or failing to do, what a reasonably prudent person, similarly situated, would have done. Cole v. R. R., 211 N. C., 591, 191 S. E., 353; Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358.\nA careful perusal of the record engenders the conclusion that it is insufficient to support a recovery. The motion for judgment as in case of nonsuit should have been allowed. C. S., 567.\nReversed.", "type": "majority", "author": "Stacy, C. J." } ], "attorneys": [ "W. Vance Howard and Paul R. Ervin for plaintiff, appellee.", "Cansler & Gansler for defendant, appellant." ], "corrections": "", "head_matter": "RALPH THREATT, by His Next Friend, A. R. THREATT, et al., v. RAILWAY EXPRESS AGENCY, INC.\n(Filed 29 April, 1942.)\n1. Automobiles \u00a7 8\u2014\nTbe drivers of vehicles along a city street are under mutual and reciprocal duty to exercise reasonable care under the circumstances arising from the exigencies of traffic.\n3. Automobiles \u00a7\u00a7 9d, 18a, 18c \u2014 Evidence held insufficient to support recovery by cyclist struck while standing in street astride bicycle.\nDefendant\u2019s driver was operating a tractor truck consisting at the time of chassis and cab without trailer. On the rear were dual wheels, the outside tire of which projected beyond the line of travel of the front wheel, unprotected by fender. Plaintiff was standing in the street astride his bicycle waiting an opportunity to proceed with the traffic after the traffic light had turned green. Plaintiff testified to the effect that he was standing 3, 4 or 5 feet from the curb, waiting for the tractor, which was traveling very slowly, to pass him. The outside rear wheel of the tractor struck plaintiff\u2019s foot. The driver testified that he did not see anyone in the street when he passed the locus, and that when he backed the truck off plaintiff\u2019s foot the outside wheel was 6 feet 8 inches from the curb. Held: In the absence of evidence raising more than mere speculation whether the driver could have seen plaintiff\u2019s precarious position before the rear wheel struck him, defendant\u2019s motion to nonsuit should have been granted, if not upon the issue of negligence, then upon the issue of contributory negligence.\n3. Negligence \u00a7 la\u2014\nNegligence is doing other than, or failing to do, what a reasonably prudent person, similarly situated, would have done.\nAppeal by defendant from Blacltstock, Special Judge, at November Special Term, 1941, of Mecklenburg.\nCivil action to recover damages for personal injuries sustained by plaintiff wben bis left foot was caugbt under tbe rear wheel of defendant\u2019s truck on a public street in tbe city of Charlotte.\nPlaintiff was injured on 16 October, 1940. He was then 19 years of age and employed by the Western Union Telegraph Company as a messenger. He came out of the telegraph office on East Third Street on his way to lunch, got his bicycle which was parked in the rack in front of the office door, turned it around in the direction of Tryon Street which was some distance away, stopped for the red light to turn, and he says, \u201cI waited for traffic to get on by and this truck, Railway Express truck, was coming from behind. It never did come to a standstill, it proceeded slowly, and I was waiting for it to get on by and the rear wheel struck my left foot, as I was standing there waiting for the traffic to proceed so I could go on. (Cross-examination) I was standing about 3 or 4 feet from the curb. ... I was approximately this distance (indicating about 5 feet) from the curb.\u201d\nThe right rear tire of defendant\u2019s tractor, consisting of chassis and cab \u2014 it did not have trailer attached at the time \u2014 which struck the plaintiff\u2019s foot was on the outer dual wheel. It projected beyond the line of travel of the front wheel, and was unprotected by fender.\nThe driver of the chassis and cab testified that he stopped for the red light, with two cars standing in front of him; that the plaintiff had not entered the street when his cab passed the bicycle rack. \u201cThere was not anyone in the street in front of the Western Union door where that rack is when I passed the rack and came to a stop. . . . When I started up I caught his foot. ... I stopped and looked back through my back glass. . . . I backed the truck off his foot. ... I asked him how he got under the truck. He said he didn\u2019t know. ... It measured 6 feet 8 inches from the curb to the outside of the dual wheel tire, the right hand rear tire, the one that caught the boy. . . . The bicycle rack was behind the truck when I got out.\u201d\nThe defendant moved for judgment of nonsuit at the close of plaintiff\u2019s evidence and again at the close of all the evidence. Overruled; exception.\nThe usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff. From judgment on the verdict, the defendant appeals, assigning errors.\nW. Vance Howard and Paul R. Ervin for plaintiff, appellee.\nCansler & Gansler for defendant, appellant." }, "file_name": "0211-01", "first_page_order": 247, "last_page_order": 249 }