{ "id": 8626780, "name": "DESSIE AGNES MORGAN, Administratrix of the Estate of ALBERT FRED MORGAN, Deceased, v. BELL BAKERIES, INC., and MILLER J. COOK, Original Parties Defendant, and O. W. CLAYTON t/a C & S TRANSPORT COMPANY and JOE WILLIAM FOY, Additional Parties Defendant", "name_abbreviation": "Morgan v. Bell Bakeries, Inc.", "decision_date": "1957-06-07", "docket_number": "", "first_page": "429", "last_page": "434", "citations": [ { "type": "official", "cite": "246 N.C. 429" } ], "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": "78 S.E. 2d 719", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "238 N.C. 607", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8614616 ], "opinion_index": 0, "case_paths": [ "/nc/238/0607-01" ] }, { "cite": "84 S.E. 2d 817", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 190", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8605816 ], "opinion_index": 0, "case_paths": [ "/nc/241/0190-01" ] }, { "cite": "86 S.E. 2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608169 ], "opinion_index": 0, "case_paths": [ "/nc/242/0001-01" ] }, { "cite": "83 S.E. 2d 543", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 606", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606359 ], "opinion_index": 0, "case_paths": [ "/nc/240/0606-01" ] }, { "cite": "177 S.E. 170", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "207 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626193 ], "opinion_index": 0, "case_paths": [ "/nc/207/0378-01" ] }, { "cite": "156 S.E. 550", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "200 N.C. 92", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8616805, 8616662 ], "opinion_index": 0, "case_paths": [ "/nc/200/0092-02", "/nc/200/0092-01" ] }, { "cite": "92 S.E. 2d 773", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 191", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219490 ], "opinion_index": 0, "case_paths": [ "/nc/244/0191-01" ] }, { "cite": "96 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 364", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611264 ], "opinion_index": 0, "case_paths": [ "/nc/245/0364-01" ] } ], "analysis": { "cardinality": 701, "char_count": 14344, "ocr_confidence": 0.564, "pagerank": { "raw": 1.1936658090371388e-07, "percentile": 0.5919476386461141 }, "sha256": "ac150cf320fd4deb84ae3bed59a74f83b906838a4a75a85f6728e9e0ba4bc999", "simhash": "1:0307f76f02fcd34b", "word_count": 2442 }, "last_updated": "2023-07-14T21:30:34.544387+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "DESSIE AGNES MORGAN, Administratrix of the Estate of ALBERT FRED MORGAN, Deceased, v. BELL BAKERIES, INC., and MILLER J. COOK, Original Parties Defendant, and O. W. CLAYTON t/a C & S TRANSPORT COMPANY and JOE WILLIAM FOY, Additional Parties Defendant." ], "opinions": [ { "text": "HiggiNS, J.\nAppellants\u2019 assignment of error first discussed in their brief and heavily relied on in the oral argument is based upon the trial court\u2019s refusal to grant their motion for nonsuit made at the close of all the evidence. White v. Lacey, 245 N.C. 364, 96 S.E. 2d 1. In passing on the motion it was the duty of the trial court, and in passing on the assignments of error it is the duty of this Court, to take the evidence in the light most favorable to the plaintiff; to resolve all conflicts in her favor; and to give her the benefit of all reasonable inferences which may be drawn from the evidence. Poindexter v. Bank, 244 N.C. 191, 92 S.E. 2d 773.\nTaking the evidence in the light most favorable to the plaintiff, it discloses the following: North Carolina Highway No. 87 between Fayetteville and Elizabethtown is of asphalt surface, 22 feet wide. About seven miles south of Fayetteville, Burney\u2019s store is located on the east side of the highway and about 35 feet from it. On either side of the store and between it and the highway is a parking or service area. From Burney\u2019s store the highway is straight and level for about half a mile both north toward Fayetteville and south toward Eliza-bethtown.\nAt about 6:15 on the morning of 14 March, 1955, the plaintiff\u2019s intestate was driving a Southern Oil Transportation Company\u2019s combination tanker and tractor south on highway 87. A mist of rain was falling. The surface of the road was wet. As plaintiff\u2019s intestate approached the store going south, another tractor-tanker combination, owned by the C & S Transport Company and driven by Joe William Foy, approached from the south.\nJoe William Foy, the driver of the C & S tanker, testified: \u201cI came on 87 up to Burney\u2019s store. My rig was involved in a collision, I would say around six o\u2019clock. ... As I approached Burney\u2019s store there was a vehicle approaching me from the north (the tanker operated by plaintiff\u2019s intestate) . . . The lights on my rig were burning, . . . headlights and clearance lights. . . . The lights were burning on the vehicle approaching me. I did not see anything at Burney\u2019s store, or at or about the road there. . . . Right at Burney\u2019s store a truck ran out across the road ahead of me, I would say we (the two tanker combinations) were probably 50 or 60 feet, something like that, apart. . . . I just glimpsed this truck that came out of Burney\u2019s store as it ran across the road ahead of me. My vehicle did not strike that truck. It went across my lane. The truck that ran across the road ahead of me did not have any lights. . . . All I saw was a glimpse and just the shape of a bread truck. All I figured, just so close the man (plaintiff\u2019s intestate) hit his brakes to keep from hitting it (the bread truck) and the truck (tanker) started jackknifing and jackknifed across the road ahead of me.\u201d (Defendants\u2019 exception No. 161 is to the refusal of the court to strike the last quoted sentence. However, the defendants, from the same witness on cross-examination, brought out the following) : \u201cI swore that the oil tanker applied brakes too suddenly, in case where he was at, he had to do something. I swore and now say that he applied brakes too suddenly and jackknifed.\u201d\nSusie Edwards, a witness for the plaintiff, testified that she was on her back porch \u201cabout two city blocks\u201d from Burney\u2019s store. She heard the crash, took five or six quick steps to the front. \u201cI saw the bread truck going on down the road. I could see the oil tankers in the ditch. . . . When I saw the bread truck it was just about as far as from here maybe to the back of the courtroom from the tankers. The bread truck was orange or some color of red like.\u201d\nS. A. Burney testified in substance that about 6:15 on the morning of 14 March, 1955, he was in bed at the time the wreck occurred. His store was not open. It was the custom of the defendant Cook to make deliveries of Bell Bakeries bread each day except Sunday, usually before the witness got up. On the morning of the 14th the bread, as usual, was left in the rack under an awning at the front of the store. Immediately after the wreck he found Bell Bakeries bread in the rack. Two other bakeries made deliveries to him daily, but their deliveries were made between 11:00 and 12:30 in the daytime. Plaintiff\u2019s intestate was killed in the wreck.\nF. T. Rolland testified that he lived about 10 miles south of Burney\u2019s store and bought bread from Bell Bakeries every morning except Sunday. The deliveries were made about six o\u2019clock; that deliveries had been made each morning between October and the day of the accident. On that day the defendant Cook made the delivery in the afternoon rather than in the morning as usual.\nThe highway patrolman testified that he had a conversation with the defendant Cook about three o\u2019clock on the afternoon of the accident; that Cook stated he delivered bread at Burney\u2019s store in the early morning, pulled out at an angle in front of north-bound traffic; that he looked in his side view mirror, didn\u2019t see any south-bound traffic, and continued on his journey. (The evidence was admitted against Cook only and the jury was instructed accordingly.)\nOther drivers who delivered bread at Burney\u2019s store testified they were not at the store in the early morning on the day of the accident. Evidence was offered tending to show that the Bell Bakeries\u2019 bread truck had pink or red markings and that other bread trucks had different markings.\nThe defendants, in their joint answer, say:\n\u201cIt is admitted that Miller J. Cook served, as an employee of the said Bell Bakeries, Inc., grocery stores on N. C. Highway 87, and including Simon A. Burney, . . .\n\u201cIt is admitted that on 14 March 1955 Miller J. Cook as an employee of Bell Bakeries, Inc., sold and delivered certain of the products of said Bell Bakeries, Inc., and that the truck used by said Miller J. Cook in connection with said business was the property of said Bell Bakeries, Inc., . . .\n\u201cIt is admitted that sometime between 6 a.m. and 6:30 a.m. on 14 March 1955 the said Miller J. Cook left products of Bell Bakeries, Inc., at the store of Simon A. Burney, at which time the said Simon A. Burney had not opened for business, . . .\u201d\nThe evidence and admissions in the pleadings are sufficient to support these findings: (1) At the time of the accident Cook was agent of and driving the truck for Bell Bakeries, Inc.; (2) he drove the truck into the path of the tanker operated by plaintiff\u2019s intestate when such movement could not be made in safety; (3) by so doing Cook placed plaintiff\u2019s intestate in a position of sudden peril and in his efforts to extricate himself he was killed; (4) the defendants\u2019 negligent conduct was the proximate cause or one of the proximate causes of the accident and death of plaintiff\u2019s intestate. The evidence was sufficient to warrant the jury in answering the first issue for the plaintiff. Price v. Gray, ante, 162.\nOn the second issue the burden of showing contributory negligence was on the defendants. Murphy v. Coach Co., 200 N.C. 92, 156 S.E. 550. The jury found the defendants did not carry this burden and the evidence does not show contributory negligence as a matter of law. Jones v. Bagwell, 207 N.C. 378, 177 S.E. 170. The evidence was sufficient to support the verdict. The motion for nonsuit was properly denied.\nThe defendants insist evidence relating to the delivery of bread by other bakeries, the testimony of their drivers with respect to their times of delivery at Burney\u2019s store, and the description of the trucks used in making the deliveries was all erroneously admitted. The admissibility is challenged by 89 exceptions. The defendants contend that the Bell Bakeries\u2019 truck was not involved in the accident in any way and the evidence fails to show that it actually came in contact with either of the tankers which were wrecked. But the evidence offered and admitted were circumstances tending to identify the truck as belonging to and operated by the defendants. Circumstantial evidence was admitted for that purpose. The rule with respect to such evidence is thus stated: \u201cWhile he (the judge) shall reject as too remote every fact which merely furnishes a forceful analogy or a conjectural inference, he may admit as relevant the evidence of all those matters which shed a real, though perhaps an indistinct and feeble light on the question at issue.\u201d S. v. Stone, 240 N.C. 606, 83 S.E. 2d 543. Error does not appear and the exceptions cannot be sustained.\nThe defendants\u2019 assignment of error No. 15 is based on seven exceptions to the testimony of the highway patrolman who interviewed the defendant Cook in the afternoon of the day on which the accident occurred. At the time the evidence was admitted the court instructed the jury that Cook\u2019s statements were not admissible against the corporate defendant and could not be considered against it. There can be no question but that they were admissible against the defendant Cook who made them.\nThe defendants bring forward 50 exceptions to the court\u2019s charge. Only a few paragraphs escape their exceptive assignments. Those free of objection deal with the issues, burden of proof, measure of damages, constituent elements of actionable negligence, and the admissibility of photographs. Unobjected to are the instructions given in obedience to defendants\u2019 request. Virtually all of the court\u2019s recital of the evidence and his statement of the contentions of the parties are challenged, though no request for correction was made or called to the court\u2019s attention before the case was submitted to the jury. The failure constituted a waiver. Peek v. Trust Co., 242 N.C. 1, 86 S.E. 2d 745; Moore v. Bezalla, 241 N.C. 190, 84 S.E. 2d 817; Brewer v. Brewer, 238 N.C. 607, 78 S.E. 2d 719.\nUpon careful examination the charge appears to have covered all essential elements of the case and is in substantial accord with applicable principles of law. The careful review of this record has been difficult and time consuming. More than 200 exceptions have been examined. The assignments of error alone cover 68 pages of the record: If there is grain of merit in this appeal it is covered up in the chaff.\nNo error.", "type": "majority", "author": "HiggiNS, J." } ], "attorneys": [ "Cooke & Cooke,", "By: Arthur 0. Cooke,", "King, Adams, Kleemeier & Hagan,", "By: Charles T. Hagan, Jr., for plaintiff, appellee.", "Varser, McIntyre, Henry & Hedgpeth, for defendants, appellants." ], "corrections": "", "head_matter": "DESSIE AGNES MORGAN, Administratrix of the Estate of ALBERT FRED MORGAN, Deceased, v. BELL BAKERIES, INC., and MILLER J. COOK, Original Parties Defendant, and O. W. CLAYTON t/a C & S TRANSPORT COMPANY and JOE WILLIAM FOY, Additional Parties Defendant.\n(Filed 7 June, 1957.)\n1. Appeal and Error \u00a7 51: Trial \u00a7 32a\u2014\nIn passing on motion to nonsuit and in passing on assignment of error to the refusal of the motion, the evidence must be taken in the light most favorable to plaintiff, giving her the benefit of all reasonable inferences which may he drawn from the evidence.\n2. Automobiles \u00a7 41i \u2014 Evidence of negligence in entering highway in path of traffic, causing collision between two other vehicles, held for jury.\nThe evidence tended to show that the driver of defendant\u2019s truck entered the highway from a store on the east side of the highway, traversed the north-bound lane and turned left into the south-bound lane between two tractor-trailers, traveling in opposite directions, when they were some 50 or 60 feet apart, so that the driver of the south-bound tractor-trailer, to avoid hitting the truck, suddenly applied his brakes, causing the tractor-trailer to jackknife on the wet asphalt, resulting in collision between the two tractor-trailers, in which collision the driver of the south-bound vehicle was killed. Held: In action by the personal representative of the deceased driver, the evidence is sufficient to be submitted to the jury on the question of whether the negligence of defendant driver was the proximate cause, or one of the proximate causes of the collision, even though his vehicle continued on its way without colliding with either of the tractor-trailers.\nS. Automobiles \u00a7\u00a7 37, 41p\u2014\nThe identity of the vehicle as the one which was negligently operated by the driver thereof may be established by circumstantial evidence. Therefore, when the evidence tends to show that the vehicle negligently operated was a bakery truck which entered the highway from a store, evidence tending to show that bakery products of that company had just been delivered to the store, that other bakeries selling products to the store made no deliveries near the time in question, and testimony describing the trucks used in making deliveries of bakery products to the store, including the color of defendant\u2019s truck, are competent.\n4. Evidence \u00a7 42d\u2014\nWhere relevant statements made by the employee to a patrolman who interviewed him in the afternoon of the day during which the accident in suit occurred, are admitted solely against the employee and the jury instructed not to consider them against the employer, exception to the admission of the testimony cannot be sustained.\n5. Appeal and Error \u00a7 42\u2014\nOrdinarily, the court\u2019s recital of the evidence and the statement of the contentions of the parties will not be held for error when asserted misstatements therein are not called to the court\u2019s attention before the ease is submitted to the jury and no request for correction is made.\nAppeal by defendants from Sink, E. J., October, 1956 Term, Cum-beRLAND Superior Court.\nCivil action to recover damages for the wrongful death of plaintiff\u2019s intestate in a motor vehicle accident alleged to have been caused by the actionable negligence of the defendants. The defendants filed a joint answer in which they denied involvement in the accident, denied negligence, and alleged contributory negligence on the part of plaintiff\u2019s intestate. The defendants, upon motion in the cause, had O. W. Clayton, trading as C & S Transport Company, and Joe William Foy made additional parties defendant for purpose of contribution as joint tort-feasors. At the close of all the evidence the court entered an order dismissing the cross action as to the additional defendants. From that order, there was no appeal. The jury answered issues of negligence, contributory negligence, and damages in favor of the plaintiff. From the judgment on the verdict, the defendants appealed.\nCooke & Cooke,\nBy: Arthur 0. Cooke,\nKing, Adams, Kleemeier & Hagan,\nBy: Charles T. Hagan, Jr., for plaintiff, appellee.\nVarser, McIntyre, Henry & Hedgpeth, for defendants, appellants." }, "file_name": "0429-01", "first_page_order": 479, "last_page_order": 484 }