{ "id": 8614809, "name": "MRS. LOIS R. BUMGARDNER, Administratrix of the Estate of DONNA RAE BUMGARDNER ELLIOTT, Deceased, v. C. W. ALLISON, SR., HARRIET O. ALLISON, C. W. ALLISON, JR., and GRAHAM T. ALLISON, Trading as ALLISON FENCE COMPANY; and ROBERT H. GEORGE and H. M. BARGER, Trading and Doing Business as RED BIRD TAXI", "name_abbreviation": "Bumgardner v. Allison", "decision_date": "1953-11-25", "docket_number": "", "first_page": "621", "last_page": "626", "citations": [ { "type": "official", "cite": "238 N.C. 621" } ], "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": "74 S.E. 2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "236 N.C. 698", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627488 ], "opinion_index": -1, "case_paths": [ "/nc/236/0698-01" ] }, { "cite": "61 S.E. 2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "232 N.C. 478", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606269 ], "opinion_index": 0, "case_paths": [ "/nc/232/0478-01" ] }, { "cite": "64 S.E. 2d 846", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 555", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612949 ], "opinion_index": 0, "case_paths": [ "/nc/233/0555-01" ] }, { "cite": "52 S.E. 2d 876", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 322", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629796 ], "opinion_index": 0, "case_paths": [ "/nc/230/0322-01" ] }, { "cite": "24 S.E. 2d 523", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "222 N.C. 713", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632268 ], "opinion_index": 0, "case_paths": [ "/nc/222/0713-01" ] }, { "cite": "72 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "236 N.C. 145", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622892 ], "opinion_index": 0, "case_paths": [ "/nc/236/0145-01" ] }, { "cite": "62 A.L.R. 1425", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "16 A.L.R. 465", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "181 S.E. 551", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 526", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612653 ], "opinion_index": 0, "case_paths": [ "/nc/208/0526-01" ] }, { "cite": "198 S.E. 637", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "214 N.C. 188", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629367 ], "opinion_index": 0, "case_paths": [ "/nc/214/0188-01" ] }, { "cite": "50 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12166417 ], "opinion_index": 0, "case_paths": [ "/nc/229/0435-01" ] }, { "cite": "63 S.E. 2d 197", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 160", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600698 ], "opinion_index": 0, "case_paths": [ "/nc/233/0160-01" ] }, { "cite": "64 S.E. 2d 276", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 377", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608425 ], "opinion_index": 0, "case_paths": [ "/nc/233/0377-01" ] }, { "cite": "66 S.E. 2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 107", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618614 ], "opinion_index": 0, "case_paths": [ "/nc/234/0107-01" ] }, { "cite": "68 S.E. 2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625600 ], "opinion_index": 0, "case_paths": [ "/nc/234/0666-01" ] }, { "cite": "146 S.E. 134", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N.C. 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627888 ], "opinion_index": 0, "case_paths": [ "/nc/196/0504-01" ] }, { "cite": "156 S.E. 508", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 117", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "30 S.E. 2d 312", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 402", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8603409 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/224/0402-01" ] }, { "cite": "16 S.E. 2d 842", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 195", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11300721 ], "opinion_index": 0, "case_paths": [ "/nc/220/0195-01" ] }, { "cite": "68 S.E. 2d 316", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 627", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625256 ], "opinion_index": 0, "case_paths": [ "/nc/234/0627-01" ] }, { "cite": "70 S.E. 2d 837", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 591", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626171 ], "opinion_index": 0, "case_paths": [ "/nc/235/0591-01" ] }, { "cite": "62 S.E. 2d 489", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "233 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597126 ], "opinion_index": 0, "case_paths": [ "/nc/233/0038-01" ] }, { "cite": "70 S.E. 2d 845", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626074 ], "opinion_index": 0, "case_paths": [ "/nc/235/0568-01" ] }, { "cite": "54 S.E. 2d 53", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 551", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8631077 ], "opinion_index": 0, "case_paths": [ "/nc/230/0551-01" ] }, { "cite": "52 S.E. 2d 355", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "230 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628854 ], "opinion_index": 0, "case_paths": [ "/nc/230/0155-01" ] }, { "cite": "67 S.E. 2d 63", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "234 N.C. 206", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620796 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/234/0206-01" ] }, { "cite": "151 S.E. 197", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "198 N.C. 193", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602347 ], "opinion_index": 0, "case_paths": [ "/nc/198/0193-01" ] }, { "cite": "157 S.E. 871", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624644 ], "opinion_index": 0, "case_paths": [ "/nc/200/0589-01" ] }, { "cite": "171 S.E. 626", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 425", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8629227 ], "opinion_index": 0, "case_paths": [ "/nc/205/0425-01" ] } ], "analysis": { "cardinality": 846, "char_count": 16393, "ocr_confidence": 0.488, "pagerank": { "raw": 2.4414915683921444e-07, "percentile": 0.8031033855641777 }, "sha256": "291f4c5a75466070d6aad866d8861cc0b8ebc53be703838542428d36767c9c17", "simhash": "1:8409cbec6a373b6c", "word_count": 2945 }, "last_updated": "2023-07-14T17:58:50.226870+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MRS. LOIS R. BUMGARDNER, Administratrix of the Estate of DONNA RAE BUMGARDNER ELLIOTT, Deceased, v. C. W. ALLISON, SR., HARRIET O. ALLISON, C. W. ALLISON, JR., and GRAHAM T. ALLISON, Trading as ALLISON FENCE COMPANY; and ROBERT H. GEORGE and H. M. BARGER, Trading and Doing Business as RED BIRD TAXI." ], "opinions": [ { "text": "JOHNSON, J.\nThe evidence adduced below, as it relates to the defendants Fence Company and truck-driver George, makes out a clear prima facie case of actionable negligence against these defendants. This, without more, on the basis of the testimony tending to show (1) that the truck was left parked in the nighttime without lights of any kind, in violation of G.S. 20-134, and also in violation of the ordinance of the City of Hickory adopted pursuant to the provisions of this statute, and (2) that there was a failure to display a red light at the end of the pipes which projected out behind the truck body, as required by G.S. 20-117. See Barrier v. Thomas, etc., Co., 205 N.C. 425, 171 S.E. 626; Brewer v. Moye, 200 N.C. 589, 157 S.E. 871; Williams v. Motor Express Lines, 198 N.C. 193, 151 S.E. 197; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E. 2d 63.\nIt is also manifest that the evidence adduced below, as it relates to the defendant Barger, is sufficient to make out a prima facie case of actionable negligence as to him. This, upon the theory that the evidence was sufficient to support the inference (1) that he was driving at a speed greater than was reasonable and prudent under the conditions then existing, in violation of G.S. 20-141 (Cox v. Lee, 230 N.C. 155, 52 S.E. 2d 355; Wilson v. Motor Lines, 230 N.C. 551, 54 S.E. 2d 53; Morris v. Transport Co., 235 N.C. 568, 70 S.E. 2d 845), or (2) that he failed to exercise due care in maintaining a lookout. Marshall v. R. R., 233 N.C. 38, 62 S.E. 2d 489; Adcox v. Austin, 235 N.C. 591, 70 S.E. 2d 837.\nThe decisive question presented by this appeal is whether, as urged by the appellants Fence Company and George, the case should have been nonsuited below as to them on the ground that their negligence was insulated by the intervening negligence of taxi-driver Barger, who does not appeal.\nThe appellants point to the testimony of officer Teague rvho said Barger told him that \u201cas he crossed the intersection (of Fifth Street) he . . . was blinded by lights . . . and the next thing he knew something went through the windshield.\u201d The appellants insist that the single inference deducible from this evidence, and other supporting evidence offered by the plaintiff, is that Barger became blinded at the Fifth Street intersection, some 300 feet or more from the parked truck, and blindly drove his taxicab on this entire distance through the darkness without slackening his speed or keeping a proper lookout, and crashed into the rear end of the truck when there was more than 20 feet of roadway open on the left for him to have passed in safety. On this hypothesis the appellants urge that the court below erred in not holding as a matter of law that Barger\u2019s negligence insulated the negligence of the appellants. Nothing else appearing, this contention would seem to merit serious consideration.\nBut more appears. On cross-examination, officer Teague in commenting further on his conversation with taxi-driver Barger went on to say: \u201cHe (Barger) did not say, 'I was in the intersection,\u2019 but said he was somewhere near the intersection. He did not point out one certain place.\u201d Also the record discloses that Patrolman Brown, testifying in respect to a conversation he had with Barger, said, in part, that Barger told him: \u201che was going over this dip and went down the dip to Second Avenue and that an oncoming car met him and blinded him and the next thing he knew something hit him and struck the car.\u201d Cross-examination: \u201cMr. Barger . . . told me ... it was raining at the time and that he was driving 20 to 25 miles per hour. He said he was suddenly blinded by lights of an oncoming car after he went into the dip. The next thing he remembered was something hitting him.\u201d (Italics added.)\nIt thus appears that there is plenary evidence to support the inference that Barger was in close proximity to the truck, rather than at or near the Fifth Street intersection, when blinded by the lights of the oncoming-car and that the collision occurred while he was so blinded. It was for the jury, and not for the court, to resolve the discrepancies and dispose of the contradictions in the testimony. Donlop v. Snyder, 234 N.C. 627, 68 S.E. 2d 316; Childress v. Lawrence, 220 N.C. 195, 16 S.E. 2d 842.\n\"We conclude that Judge Moore- correctly overruled the appellants\u2019 motion for judgment as of nonsuit. The evidence adduced below clearly made out a prima facie case of actionable negligence against tbe appellants and also against Barger on tbe theory of concurrent negligence.\nDecision here is controlled by tbe principles illustrated and explained in these cases: Caulder v. Gresham, 224 N.C. 402, 30 S.E. 2d 312; Smith v. R. R., 200 N.C. 117, 156 S.E. 508; Glazener v. Transit Lines, 196 N.C. 504, 146 S.E. 134. See also: McClamrock v. Packing Co., post, 648; Price v. Monroe, 234 N.C. 666, 68 S.E. 2d 283; Barber v. Wooten, 234 N.C. 107, 66 S.E. 2d 690; Hall v. Coble Dairies, supra (234 N.C. 206); Chaffin v. Brame, 233 N.C. 377, 64 S.E. 2d 276; Riggs v. Motor Lines, 233 N.C. 160, 63 S.E. 2d 197; Pascal v. Transit Co., 229 N.C. 435, 50 S.E. 2d 534; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; West v. Baking Co., 208 N.C. 526, 181 S.E. 551; 5 Am. Jur., Automobiles, Sec. 345; Annotations: 16 A.L.R. 465; 62 A.L.R. 1425.\nAnother assignment of error urged by the appellants relates to the refusal of the trial court to set aside the verdict on the ground that it is excessive. This motion was addressed to the discretion of the trial court. Caulder v. Gresham, supra (224 N.C. 402). The evidence below tends to show that the intestate was a strong, healthy girl of more than average ability. Her school teacher, Mrs. James Whitener, testified in part that she \u201cwas a very good student . . . She was an easy child to teach. She could catch on to things . . . She was respectful and obedient and took part in everything in the school room and on the playground. She was a very happy child and was one of the nicest girls I have ever taught. . . . I considered her above average.\u201d The ruling below will be sustained; no abuse of discretion has been made to appear. Poniros v. Teer Co., 236 N.C. 145, 72 S.E. 2d 9; Hawley v. Powell, 222 N.C. 713, 24 S.E. 2d 523; Pruitt v. Ray, 230 N.C. 322, 52 S.E. 2d 876.\nThe remaining exceptions brought forward by the appellants relate to the reception of evidence and the charge of the court. They have been examined with care, but no error sufficient to justify a retrial is disclosed. Simmons v. Highway Commission ante, 532; Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E. 2d 846; Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342.\nThe verdict and judgment will be upheld.\nNo error.", "type": "majority", "author": "JOHNSON, J." } ], "attorneys": [ "Theodore F. Cummings for plaintiff, appellee.", "Smathers & Shuford and Helms \u25a0<& Mulliss for defendants, appellants." ], "corrections": "", "head_matter": "MRS. LOIS R. BUMGARDNER, Administratrix of the Estate of DONNA RAE BUMGARDNER ELLIOTT, Deceased, v. C. W. ALLISON, SR., HARRIET O. ALLISON, C. W. ALLISON, JR., and GRAHAM T. ALLISON, Trading as ALLISON FENCE COMPANY; and ROBERT H. GEORGE and H. M. BARGER, Trading and Doing Business as RED BIRD TAXI.\n(Filed 25 November, 1953.)\n1. Automobiles \u00a7\u00a7 8d, lib, 18d, 21 \u2014 Whether negligence in leaving vehicle parked without lights concurred in proximately causing death to passenger in car colliding with the rear of truck held for jury.\nEvidence tending to show that the operator of a truck parked it on a city street and left the truck without lights or flares of any kind on a dark and misty night some 315 feet from the nearest street light, that pipes, constituting a part of the truck load, extended some nine feet beyond the .truck body without flag or light at the end of the pipes, and that plaintiff\u2019s intestate was fatally injured when the driver of the taxi in which she was riding collided with the rear of the truck, causing pipe of the truck to pierce her head, is held sufficient to be submitted to the jury upon the issue of the truck driver\u2019s negligence in violating the provisions of G.S. 20-134 and G.S. 20-117, and whether such negligence concurred with the negligence of the taxi driver in driving at excessive speed under the circumstances, G.S. 20-141, and in failing to keep a proper lookout, it being a . permissible inference from the evidence that the taxi driver was blinded by the lights of an oncoming car when he was in close proximity to the rear of the unlighted truck parked in his lane of travel, and nonsuit on the ground that the negligence of the truck driver was insulated by the intervening negligence of the taxi driver was properly denied.\n2. Trial \u00a7 22c\u2014\nIt is the province of the jury and not the court to resolve discrepancies and contradictions in the evidence.\n3. Trial \u00a7 49)4 \u2014\nA motion to set aside the verdict on the ground of excessive award is addressed to the discretion of the trial court.\n4. Death \u00a7 8\u2014\nIn this action to recover for the wrongful death of intestate, it is held that no abuse of discretion is shown in the refusal of the trial court to set aside the award as excessive, there being evidence that intestate was a healthy girl eleven years old of more than average ability.\nAppeal by defendants Allison, doing business as Allison Fence Company, and Robert H. George, from Moore, J., and a jury, at April Regular Civil Term, 1953, of Catawba.\nCivil action by plaintiff to recover damages for tbe alleged wrongful death of her intestate granddaughter, Donna Rae Bumgardner Elliott, a child 11 years of age, who was riding as a passenger in a taxi owned and operated by the defendant Barger. She was killed when the taxi collided with the rear end of a parked truck belonging to the defendants Allison. The collision occurred in the nighttime, about 6 :05 o\u2019clock p.m., 3 December, 1951.\nThe action was brought against taxi-driver Barger; the truck driver George, who parked the truck, and the truck owners, hereinafter referred to as the Fence Company. It was admitted that in parking the truck the defendant George was acting within the course of his employment as servant of the Fence Company. The gravamen of the complaint is that the intestate\u2019s death was caused by the concurrent negligence of all the defendants.\nThe case was here at the Fall Term, 1952, when we affirmed an order of the Superior Court overruling the demurrer of the present appellants and denying the defendant Barger\u2019s motion to strike certain allegations of the complaint, Bumgardner v. Fence Go., 236 N.C. 698, 74 S.E. 2d 32.\nOn retrial the plaintiff offered evidence which may be summarized as follows: On the afternoon in question the intestate had been to a movie in the City of Hickory. After leaving the show she phoned her grandmother, with whom she lived, and told her it was getting dark and she was afraid to walk home \u201cthrough the dip or hollow.\u201d She was instructed to take a cab home.\nAt about 6 o\u2019clock p.m., shortly after dark, she employed the taxi of the defendant Barger and in it set out toward home. The route led east-wardly along Second Avenue, S.E., inside of the City of Hickory. The Avenue east of the intersection with Fifth Street is downhill', creating a dip between Fifth Street and Seventh Street. At the dip the Avenue \u201ckind of levels off\u201d and then starts back up. The Allison truck was parked near the bottom of the dip, \u201cin the level part,\u201d slightly on the east side of the dip \u2014 \u201c30 to 40 feet east of the dip.\u201d The truck was headed east, the direction the taxi was traveling. Both right wheels were against the curb on the south side. The cab of the truck was locked. The operator was not there. The street is paved, and is 30 feet wide from curb to \u2022curb. The truck was about 8 feet wide.\n' There were no lights, flares, reflectors, or flags on or near the truck. It was partly loaded with pipes about an inch in diameter. These pipes protruded beyond the rear end of the bed of the truck 9 feet and 3 inches. 'There was no light or flag at the end of the pipes. The bed of the truck was loaded with gravel and sand of a gray color piled on top of the pipes.\nLooking west along Second Avenue from the rear of the truck, the nearest street light was at the intersection of Fifth Street, a distance \u201cof 342 or 343 feet\u201d; and looking east in front of the truck, it was 315 feet to the nearest street light \u2014 at the intersection of Seventh Street. Sixth 'Street was not opened.\nTraveling east on Second Avenue from Fifth Street there were no houses or structures of any kind on the right, or south, or south side, to where the truck was parked. On that side it was a distance of 400 to 425 feet from Fifth Street to the first structure. On the left, or north side, of the Avenue \u201cgoing east from '. . . Fifth Street ... to where the truck was parked,\u201d there was just one structure, Oliver Moore\u2019s home, and from there on east it was about 525 feet to the next building on that side of the Avenue.\nAn ordinance of the City of Hickory, adopted under the authority of G.S. 20-134 and then in effect, provides, among other things, that \u201cThe displaying of lights upon a vehicle when lawfully parked at night upon a street of the Oity of Hickory in accordance with this chapter shall not be required when there is sufficient light to reveal any person within a distance of 200 feet upon such street.\u201d\nIt was dark, rainy, misty and foggy. The road was wet. A person could be revealed at \u201cthat time and place\u201d for \u201ca distance of 100 feet at most\u201d according to one witness. Another said \u201ca person could be revealed by . . . car lights . . . at . . . around 100 feet ahead.\u201d Others placed the distance \u201cby car lights\u201d at 100, 150, and 200 feet.\nUnder these circumstances the defendant Barger was driving his taxi eastwardly at from 20 to 25 miles per hour when, while blinded by the lights of an oncoming car, he was suddenly startled by something crashing through his windshield, which it was later learned were the pipes which protruded from the rear of the truck body. The intestate, who was sitting on the rear seat of the taxi, on the right side, was hit by two or more of the pipes. One penetrated her right eye socket and came out the rear of her head. Another made a large gash in her face near her nose. The result was instant death.\nAt the point of collision the right wheels of the taxi were about \u201cfour or five feet from the right curb.\u201d The taxi \u201cwas jammed under the left side and rear of the truck body, with the cowl, at the bottom of the windshield, in contact with the end of the bed of the truck. The bumper of the taxi extended to the left rear dual wheels of the truck. The pipes projected through the taxi windshield, across the back seat, and knocked out the rear glass behind where the little girl was sitting. When officer Teague arrived, the rear lights and also the left front light of the taxi were burning.\nD. E. Smith, a witness for the plaintiff, testified that he \u201cpassed there\u201d earlier that evening, as he put it, \u201cabout 30 minutes after sundown. It was misting and raining at the time.\u201d He further said he saw the parked truck and there were no \u201clight flares, reflectors or flags on the truck. . . . I did not hit the truck. When I first saw the truck I do not guess I was 30 feet from it. I was traveling at a speed of about 30 miles per hour.\n. . . There was room to pass the truck. ... I was going in an eastern direction, I hit the bottom of the dip and leveled out, ... At the time I saw the truck and swerved to the left to miss it, I was not meeting any cars. ... I was pretty close to the rear end of the pipes when I swerved; it would be hard to say how close. I was approximately 2 or 3 feet or a little more from the rear end of the pipes when I swerved.\u201d\nThe defendants offered no evidence.\nIssues were submitted to and answered by the jury \u00e1s follows:\n\u201c1. Was the death of plaintiff\u2019s intestate Donna Rae Bumgardner Elliott caused by the negligence of the Allison Fence Company and Robert H. George, as alleged in the complaint ? Answer: Yes.\n\u201c2. Was the death of Donna Rae Bumgardner Elliott caused by the negligence of the defendant H. M. Barger, T/A Red Bird Taxi Co., as alleged in the plaintiff\u2019s complaint ? Answer: Yes.\n\u201c3. What amount, if any, is the plaintiff entitled to recover for the death of her intestate, Donna Rae Bumgardner Elliott ? Answer: $25,000.00.\u201d\nFrom judgment entered upon the verdict, the defendants Fence Company and Robert II. George appealed, assigning errors.\nTheodore F. Cummings for plaintiff, appellee.\nSmathers & Shuford and Helms \u25a0<& Mulliss for defendants, appellants." }, "file_name": "0621-01", "first_page_order": 671, "last_page_order": 676 }