{ "id": 8626551, "name": "THOMAS HOLMES v. BLUE BIRD CAB, INC., and S. H. BLACK", "name_abbreviation": "Holmes v. Blue Bird Cab, Inc.", "decision_date": "1947-06-05", "docket_number": "", "first_page": "581", "last_page": "585", "citations": [ { "type": "official", "cite": "227 N.C. 581" } ], "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": "223 Pac., 1063", "category": "reporters:state_regional", "reporter": "P.", "weight": 2, "opinion_index": 0 }, { "cite": "9 S. E., 302", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "102 N. C., 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649804 ], "opinion_index": 0, "case_paths": [ "/nc/102/0390-01" ] }, { "cite": "12 S. E., 911", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "108 N. C., 150", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8650088 ], "opinion_index": 0, "case_paths": [ "/nc/108/0150-01" ] } ], "analysis": { "cardinality": 510, "char_count": 9795, "ocr_confidence": 0.454, "pagerank": { "raw": 6.466313812086985e-08, "percentile": 0.39841608526211375 }, "sha256": "15fb326b5f23d24e7069e4dbd06bd2ab29e7379d651d26116dfe6e28314228da", "simhash": "1:fa6b94bcf28b3449", "word_count": 1664 }, "last_updated": "2023-07-14T16:20:04.384970+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS HOLMES v. BLUE BIRD CAB, INC., and S. H. BLACK." ], "opinions": [ { "text": "Seawell, J.\nThe plaintiff brought this action to recover damages for a personal injury sustained by collision with a-cab owned by the Blue Bird Cab, Inc., and driven by its employee, S. H. Black. Both are defendants and the agency is admitted. Issue was joined as to the negligence, contributory negligence and damages, resulting in a verdict favorable to the plaintiff. From the judgment ensuing defendants appealed.\nThere was sharp contradiction between the evidence of plaintiff and that of the defendants on vital questions of negligence. The statement of the occurrence by the plaintiff prevailed. The only exceptions argued are to the instructions to the jury and the refusal to give an instruction asked for by the defendants.\nThe only evidence necessary to bring forward relates to the instruction which was refused.\nAt the time of the injury, according to plaintiff\u2019s statement, he was crossing the street under the protection of the green light when the defendant Black, driving the taxicab through the intersection, and against the red light at a high rate of speed, ran into him, causing severe injury. At the time plaintiff* was pushing a small bicycle, belonging to a niece, across the intersection, carrying it to a repair shop. One pedal was off, and was strapped to the handle bars. The bicycle was too small for plaintiff to ride. It was unlighted.\nThe defendants requested an instruction that failure to have the bicycle lighted was a violation of'the statute, G. S., 20-129, subsection (f), and evidence of negligence to be considered on the issue of contributory negligence. The instruction was refused.\nInstructing the jury upon the issue as to negligence of the defendants, the court said:\n\u201cBut if a person is driving the automobile and is doing it negligently, that is, if he is doing it differently from what a reasonably prudent man would have done it at the time and place in question, when the injury occurred, then he is negligent, and if his negligence is the proximate cause of damage or injury to another, then liability follows.\u201d\nTbe objection is tbat tbe court erred in using tbe term \u201cliability\u201d in tbis connection since, it is pointed out, \u201cliability\u201d is fixed by law on tbe finding of negligence and proximate cause and tbe jury is not permitted to deal witb it. Argued witb tbis in defendant\u2019s brief is a further instruction on tbe same issue relative to tbe principle of respondeat superior in wbieb tbe term \u201cliability\u201d was again used. Tbe objection would bave more point if tbe issues bad been such as to submit tbe question of liability to tbe jury; tbe issues, however, submitted only tbe question of negligence and proximate cause. Tbe only question here is whether tbe jury was prejudiced against tbe defendant by a plain statement of tbe law, tbe correctness of which is not questioned. Neither Braswell v. Johnston, 108 N. C., 150, 12 S. E., 911, nor Farrell v. Railroad, 102 N. C., 390, 9 S. E., 302, support tbe objection made by appellant. In tbe former case tbe one issue submitted was, \u201cHow much, if any, is tbe plaintiff entitled to recover ?\u201d\u2022 \u2014 thus ignoring the- issues of fact and substituting a question of law. In tbe latter case tbe defendant asked for an instruction which would have bad tbe same effect. Other eases cited in tbe brief are distinguishable on tbe same principle.\nIn none of tbe cases cited by defendants is tbe word \u201cliable\u201d used at all. Tbe question posed by these cases in different form is, whether it was proper to charge tbe jury tbat tbe plaintiff could or could not recover, rather than, under our present practice, submit tbe issues of fact upon which recovery is determined. Braswell v. Johnston, supra.\n\u201cLiable\u201d is defined as \u201cresponsible for\u201d- \u2014 derived from tbe same Latin root we find in \"respondeat superior\u201d \u2014 the principle on which tbe employer is held for tbe tortious act of tbe employee. To use tbat term in tbe connection we find it, even though some other word might bave been as fitting, cannot be held as prejudicial. There is tbe further objection tbat tbe language employed here implies legal liability without regard to contributory negligence inasmuch as it does not mention negligence of tbe plaintiff. Tbat subject was fully treated in instructions on tbat issue.\nThe court charged tbe jury on contributory negligence as follows:\n\u201c 'Contributory negligence,\u2019 gentlemen, is tbe want of ordinary care on tbe part of tbe person injured by tbe actionable negligence of another, combining and concurring witb tbat negligence, and contributing to tbe injury as a proximate cause thereof, tbat is, concurring and continuing to tbe time of tbe injury, without which tbe injury would not bave occurred.\n\u201c 'Contributory negligence\u2019 is such an act or omission on tbe part of tbe plaintiff, amounting to a whnt of ordinary care, concurring and cooperating witb some negligent act or tbe omission of tbe defendant, as makes tbe act or omission of tbe plaintiff tbe proximate cause or occasion of tbe injury complained of.\u201d\nThe defendants insist that the use of the word \u201cthe\u201d instead of \u201ca\u201d in this instruction is sufficient to mislead the jury into the conclusion that eontribuory negligence, to be a defense, must be the sole proximate cause of the injury.\nBut in almost the very last instruction given to the jury was the following :\n\u201cUnder the law of this State and under the decisions of our Supreme Court, the term \u2018contributory negligence\u2019 implies that it need not be the sole cause of the injury sustained by the plaintiff.\u201d\nThis was several times repeated with respect to conduct of the plaintiff from which it was contended inferences of negligence might be drawn. It is likewise substantially stated in the same'paragraph. from which the exceptive sentence is taken.\nThe tendered instructions directed toward the duty of having a lighted lamp on the bicycle is based on G. S., 20-129, subsection (f), reading in part:\n\u201c \u2018Lamps on Bicycles\u2019: Every bicycle shall be equipped with a lighted lamp on the front thereof, visible under normal atmospheric conditions from a distance of at least three hundred feet in front of such bicycle, and shall also be equipped with a reflex mirror or lamp on the rear, exhibiting a red light visible under like conditions from a distance of at least two hundred feet to the rear of such bicycle, when used at night.\u201d\nIn support of this exception defendants cite Benson v. Anderson (Washington, 1924), 223 Pac., 1063, and Blashfield, pp. 384, 385, which seem to be in point, and other authorities which do not tally with the factual situation. However, Benson v. Anderson, supra, upon which the Blashfield text is predicated, refers to a pedestrian who was injured while pushing an unlighted bicycle along the right side of the road, across a bridge. The opinion refers to him as a pedestrian but the injured man claimed that he had a right to be on that side of the road as a bicyclist. The opinion merely says that if a bicyclist, he should have had a light upon his bicycle as required by the statute and the substance of the opinion is that he had not bettered himself. If the cited opinion has the connotation attributed to it, it is not persuasive in its rationale.\nUnder its wording, as well as upon reason, we are unable to assent to the proposition that the cited statute has any application to the facts of this case. It refers to a bicycle, \u201cused at night\u201d and clearly implies \u201cused\u201d in the ordinary manner as a vehicle. Plaintiff was as much a pedestrian as if the bicycle had been strapped to his back or carried on his shoulder. He would have been as much, and no more, entitled to the protection of 'the law of the road if his burden had been a sack of unlighted potatoes.\nWe see no reason to disturb the result of the case. We find\nNo error.", "type": "majority", "author": "Seawell, J." } ], "attorneys": [ "Hoyle C. Ripple and Hosea V. Price for plaintiff, appellee.", "Wornble, Carlyle, Martin \u25a0& Sandridge for defendants, appellants." ], "corrections": "", "head_matter": "THOMAS HOLMES v. BLUE BIRD CAB, INC., and S. H. BLACK.\n(Filed 5 June, 1947.)\n1. Negligence \u00a7 20: Appeal and Error \u00a7 39f\u2014\nThis action, was submitted to the jury on the issues of negligence, contributory negligence and damages. The court charged to the effect that if defendant was guilty of negligence and that if such negligence was the proximate cause of injury, then, \u201cliability\u201d would follow. Held: The use of the term \u201cliability\u201d cannot be held for prejudicial error.\n2. Same\u2014\nA charge that if defendant was guilty of contributory negligence which proximately caused injury, \u201cliability\u201d would follow, cannot be held for prejudicial error as implying that legal liability would attach regardless of contributory negligence when it appears that the court thereafter defined contributory negligence and charged that it. would bar recovery if it constituted a proximate cause of the injury.\n3. Same\u2014\nThe use of the phrase \u201cthe proximate cause\u201d of injury instead of \u201ca proximate cause\u201d of injury in defining contributory negligence that would bar recovery, cannot be held for prejudicial error when it appears that the court repeatedly charged that contributory negligence need not be the sole proximate cause of the injury in order to bar recovery by plaintiff.\n4. Automobiles \u00a7\u00a7 15, 18i\u2014\nPlaintiff\u2019s evidence was to the effect that at nighttime he was carrying a child\u2019s bicycle, too small for him to ride, across a street intersection to a repair shop, and that he was hit by a vehicle entering the intersection against the stop light at a high rate of speed. Held: The refusal to give defendants\u2019 requested instruction that the failure to have a light on the bicycle was a violation of G. S., 20-129 (f), was not error, since under the circumstances plaintiff was a pedestrian rather than a cyclist.\nDEFENDANT\u2019S appeal from Clement, J., at January Term., 1947, of Forsyth.\nHoyle C. Ripple and Hosea V. Price for plaintiff, appellee.\nWornble, Carlyle, Martin \u25a0& Sandridge for defendants, appellants." }, "file_name": "0581-01", "first_page_order": 629, "last_page_order": 633 }