{ "id": 8623554, "name": "IDELL H. COCKMAN v. CURTIS E. POWERS", "name_abbreviation": "Cockman v. Powers", "decision_date": "1958-05-21", "docket_number": "", "first_page": "403", "last_page": "408", "citations": [ { "type": "official", "cite": "248 N.C. 403" } ], "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": "95 S.E. 2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 152", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606668 ], "opinion_index": 0, "case_paths": [ "/nc/245/0152-01" ] }, { "cite": "100 S.E. 2d 849", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 340", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626975 ], "pin_cites": [ { "page": "348" } ], "opinion_index": 0, "case_paths": [ "/nc/247/0340-01" ] }, { "cite": "181 S.E. 562", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "208 N.C. 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8611693 ], "opinion_index": 0, "case_paths": [ "/nc/208/0497-01" ] }, { "cite": "6 S.E. 2d 808", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N. C. 82", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598957 ], "pin_cites": [ { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/nc/217/0082-01" ] }, { "cite": "91 S.E. 2d 894", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 668", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626690 ], "opinion_index": 0, "case_paths": [ "/nc/243/0668-01" ] } ], "analysis": { "cardinality": 701, "char_count": 14826, "ocr_confidence": 0.579, "pagerank": { "raw": 2.296821346901655e-07, "percentile": 0.7869200096221826 }, "sha256": "366ae1590e4a97c823f08eec0374376ef55029ab571c9fb5787988a99a560f73", "simhash": "1:f4ebdca7c2b8b683", "word_count": 2497 }, "last_updated": "2023-07-14T22:38:24.992419+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "IDELL H. COCKMAN v. CURTIS E. POWERS." ], "opinions": [ { "text": "Bobbitt, J.\nPlaintiff\u2019s testimony is the only evidence as to the cause and circumstances of her injuries. Since the only question is the sufficiency of plaintiff\u2019s evidence to survive defendant\u2019s motion for judgment of nonsuit, a close examination of plaintiff\u2019s testimony is required. Her testimony, summarized in part and quoted in part, is set out below.\nPlaintiff lived with her husband, Clarence Cockman, and their 10 and 1-year old sons, some three miles south of Asheboro. She was employed, and had been for some six months, as a sales clerk in an Ashe-boro store; but before this employment she had worked for defendant \u201cat different jobs at the Powers Poultry Company in Asheboro for about a year.\u201d\nOn Saturday, November 10, 1956, plaintiff and her husband \u201chad had an argument,\u201d and her husband was mad when he left home. He was to be at work from midnight until 7:00 a.m. and was not expected home until around 7 or 8 o\u2019clock on Sunday morning. Plaintiff\u2019s 10-year old son was spending the week-end away from home. Only plaintiff and her 1-year old son, who was asleep, were at home; and plaintiff \u201cdidn\u2019t expect anyone else to come to (her) house that night.\u201d\nUnder these circumstances, \u201cthe early morning of November 11, 1956,\u201d plaintiff telephoned defendant. She located him at his place of business in Asheboro. In response to her statement that she wanted to see him and talk to him about work, defendant told her he had been asleep, \u201cthat he didn\u2019t want to come that night, or something on that order,\u201d but would come on Sunday morning. Plaintiff insisted that she had to see him then. Thereupon, defendant consented to come to plaintiff\u2019s house; and some 20 to 25 minutes after the telephone conversation defendant drove his 1956 Mercury from the public road into the private driveway at the Cockman home and parked. The Cockman driveway is a \u201ccar route wide\u201d and leads straight to the \u201ccar house.\u201d When parked, the back end of defendant\u2019s car was \u201cabout two car-lengths or probably more, from the roadway.\u201d\nWhen plaintiff heard defendant drive up and park, she went out to defendant\u2019s parked car. She had told defendant she would meet him there. Defendant did not get out of his car, nor did he open the front door. He opened the (right) back door, which opened at the rear towards the front; and plaintiff \u201cgot in and sat on the edge of the seat on the right side.\u201d Her feet and legs were \u201cin the door-like, call it the running-board.\u201d Plaintiff was attired in \u201cher lounging pajamas, 2-piece, red and trimmed in white, with long sleeves and long pants.\u201d\nIn her testimony on direct examination, plaintiff didn\u2019t \u201cthink that the headlights or parking lights were on,\u201d on defendant\u2019s car, and didn\u2019t \u201cthink that the motor was running,\u201d when she went out to the car or during her conversation with defendant in the car. On cross-examination, she was positive that the lights were out; and her testimony as to defendant\u2019s having \u201cstarted up\u201d the car, referred to below, tends to confirm her thought that the motor was not running.\nIn the car, defendant seated in the front seat under the steering wheel and plaintiff seated on the back seat on the right side \u201cas when she got in the car,\u201d plaintiff and defendant talked \u201ca few minutes.\u201d The gist of their conversation was that plaintiff was dissatisfied with her job as sales clerk in the Asheboro store and \u201casked if she could go back to work at (defendant\u2019s) poultry company.\u201d\nThe midnight conference terminated abruptly when plaintiff\u2019s husband, \u201ca big man physically,\u201d drove up, stopped in front of the house, and went straightway to the parked Mercury.\nPlaintiff\u2019s husband, cursing, jerked plaintiff by her hand or arm. Plaintiff \u201cjerked back from him and . . . fell in the foot-board of the car.\u201d As plaintiff struggled to get up, her husband gave attention to defendant. Defendant remained seated in the front seat, under the steering wheel. Plaintiff \u201csaw his (her husband\u2019s) head pass and it was in the front towards Mr. Powers.\u201d She \u201cimagined\u201d that her husband was \u201cin a terrible state.\u201d She testified: \u201cMy husband threw something at Mr. Powers and cursed him and threatened him; I couldn\u2019t say what he said when he threatened him; I can\u2019t recall. He said something similar to T will kill you,\u2019 but he was talking so fast I couldn\u2019t understand.\u201d Earlier, she had testified: \u201cMy husband got out of the car and came up to the car I was in; he commenced cursing, talking fast; I can\u2019t exactly repeat what he was saying; I couldn\u2019t say he was cursing me or Mr. Powers; I don\u2019t know whether I could repeat what was said but he just said, \u2018g\u2014 d \u2014 / and all such as that; he raised his voice and there was all kind of vulgar talk.\u201d\nIn this dilemma, under physical and verbal attack by plaintiff's husband, defendant \u201cstarted up\u201d his car and backed out of the driveway. In so doing, the car \u201cjolted\u201d and plaintiff was thrown out. In some manner, she was caught in the door and dragged 6-8 feet. Defendant did not linger to ascertain the extent of her injuries or to render assistance.\nPlaintiff alleged that defendant and Cockman \u201cengaged in an argument\u201d; that defendant started and backed his car, suddenly and without warning to her, \u201cjust as the plaintiff was attempting to get out of the car\u201d; and that \u201cthe right rear door of the said Mercury automobile caught plaintiff and threw her to the ground.\u201d Her testimony shows a violent assault by Cockman on defendant, not an argument between them. Also, her testimony was that she was thrown out of the car under these circumstances: \u201cI was getting up from the foot-board when the car jerked; I was not sitting but I was down, my head was not down; I was trying to get up to get out; I was not flat on my back, I was not on my side, I was kind of in a sitting position.\u201d However, the variance between plaintiff\u2019s allegations and her testimony is not the basis of decision.\nIt would seem, accepting plaintiff\u2019s testimony, that plaintiff\u2019s husband did not correctly appraise the innocent purpose of plaintiff\u2019s meeting with defendant or the subject of their conversation. Be that as it may, the impression is indelible that plaintiff\u2019s husband\u2019s words and actions were such that defendant had reasonable ground to believe that he was in danger of suffering serious bodily harm or even death at the hands of his assailant. It is clear that, in starting and backing his car, he acted under circumstances of emergency. In fact, it is apparent that neither plaintiff nor defendant was then concerned with what the other was doing or might do. Rather, each was concerned with what plaintiff\u2019s husband was doing or might do.\nDecision requires the application of well settled legal principles to a factual situation somewhat different from any heretofore considered by this Court. Indeed, despite diligent research, no decision in any jurisdiction involving a similar factual situation has come to our attention.\nThe doctrine of intervening negligence, Riddle v. Artis, 243 N.C. 668, 91 S.E. 2d 894, and cases cited, as ordinarily applied, does not fit the present factual situation. The assault by Cockman on defendant did not intervene between defendant\u2019s act and plaintiff\u2019s injury. On the contrary, it preceded defendant\u2019s act and was the cause thereof. Plaintiff\u2019s testimony is explicit that defendant started and backed his car while he was under violent attack by Cockman. Thus, defendant\u2019s \u00e1ct intervened between Cockman\u2019s wrongful act and plaintiff\u2019s injury; and the question is whether defendant\u2019s act may be considered a negligent act proximately causing plaintiff\u2019s injury. Butner v. Spease, 217 N. C. 82, 88, 6 S.E. 2d 808, which cites Scott v. Shepherd, 2 Bl. 892 (Squib case).\n\u201cOne who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have done.\u201d Stacy, C. J., in Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Simmons v. Rogers, 247 N.C. 340, 348, 100 S.E. 2d 849, and cases cited; 38 Am. Jur., Negligence Sec. 41; 65 C.J.S., Negligence Sec. 17.\nThe only reasonable inference that may be drawn from plaintiff\u2019s testimony is that defendant, under the circumstances, was required to act instantly, without opportunity to reason or to reflect, to protect himself from serious bodily harm; and that the threats and violence of plaintiff\u2019s husband were of such nature that defendant\u2019s attempt to leave the premises as quickly as possible cannot be considered doing what an ordinarily prudent man would not have done under the same or similar circumstances. Moreover, it would seem that the threats and violence of plaintiff\u2019s husband were of such nature as to destroy wholly defendant\u2019s capacity to make inquiry or observation as to plaintiff\u2019s position following her tussle with her husband in the back of defendant\u2019s car.\nTrue, one cannot escape liability for acts otherwise negligent because done under the stress of an emergency if such emergency was caused, wholly or in material part, by his own negligent or wrongful act. Brunson v. Gainey, 245 N.C. 152, 95 S.E. 2d 514, and cases cited; 38 Am. Jur., Negligence Sec. 41; 65 C.J.S., Negligence Sec. 17 (e).\nOn the basis of plaintiff\u2019s testimony, can it be fairly said that the sudden emergency with which he was confronted was caused, wholly or in material part, by defendant\u2019s wrongful conduct?\nIf it were our function to weigh plaintiff\u2019s testimony, it might, in some respects, impose an undue burden on credulity. Suffice to say, we must accept plaintiff\u2019s testimony at full face value in passing upon the legal sufficiency of the evidence to survive the motion for nonsuit.\nIt appears from plaintiff\u2019s testimony that her husband\u2019s rage and violence, without allowing either plaintiff or defendant an opportunity to explain the wholly innocent character of their meeting, was the sole cause of the emergency situation in which defendant acted. She testified that she hadn\u2019t given a thought \u201cto whether there would be trouble at (her) house if (her) husband returned that night.\u201d\nAs to defendant, be it remembered that plaintiff is quite positive .that defendant came to her house on this occasion reluctantly, because of plaintiff\u2019s insistence and for the sole purpose of discussing plaintiff\u2019s request for re-employment at defendant\u2019s place of business. There is nothing in plaintiff\u2019s testimony to the effect that there had been any prior relationship between plaintiff and defendant except that of employee and employer, which had terminated some six months previously, or that defendant knew that plaintiff was alone, or that she and her husband had quarreled, or that the purpose of their meeting was other than that stated by plaintiff in her telephone conversation, or that his conduct after arrival involved any improper or wrongful act on his part, or that he had reason to anticipate sudden and unexplained violence on the part of plaintiff\u2019s husband if he were at home or came to his home. Accepting plaintiff\u2019s testimony, the most that can be said is that defendant was indiscreet in going to plaintiff\u2019s home or in not refusing to talk with plaintiff under the circumstances described in her testimony.\nAccepting plaintiff\u2019s testimony, it may be that she, with knowledge of facts she did not communicate to defendant, set the stage for the sudden emergency by arranging for defendant to come to her home under conditions known to her but not communicated to defendant.\nWe conclude that the sudden and critical emergency in which defendant acted was not caused by any wrongful act of defendant but wholly by the violence of plaintiff\u2019s husband. If plaintiff set the stage therefor, this cannot avail her in her action against defendant.\nIf it be considered that this is an unrealistic appraisal of the factual situation, our answer is that plaintiff\u2019s testimony has made it so. Plaintiff must recover, if at all, on the basis of the evidence offered. While the evidence must be taken in the light most favorable to plaintiff, we are not at liberty to base decision on facts or inferences predicated upon disbelief of her testimony.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Hammond & Walker for plaintiff, appellant.", "Moser & Moser and Vaughn, Hudson, Ferrell & Carter by Ralph M. Stockton, Jr., for defendant, appellee." ], "corrections": "", "head_matter": "IDELL H. COCKMAN v. CURTIS E. POWERS.\n(Filed 21 May, 1958.)\n1. Automobiles \u00a7 19: Negligence \u00a7 14% \u2014\nOne wbo is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.\n2. Same\u2014\nOne cannot escape liability for acts otherwise negligent because done under the stress of an emergency if such emergency was caused, wholly or in material part, by his own negligent or wrongful act.\n3. Automobiles \u00a7 47\u2014 Evidence held insufficient to show negligence on part of defendant who was acting in sudden emergency.\nPlaintiff\u2019s evidence tended to show that she called defendant late at night after her husband had gone to work on the night shift and insisted that defendant come to her home to talk with her in regard to reemploying her in his plant, that defendant drove up in the driveway and she came out and sat on the edge of the back seat with her feet in the open door, and that while they were talking plaintiff\u2019s husband suddenly arrived, jerked plaintiff\u2019s arm, that she jerked back and fell in the car, that plaintiff\u2019s husband, cursing and threatening defendant, threw something at him and started around the car toward defendant, and that while plaintiff\u2019s husband was thus subjecting him to physical and verbal attack defendant started the car and backed out of the driveway, that in some manner plaintiff caught in the door of the ear and was dragged to her injury. Held,: The evidence discloses that defendant was required to act in a sudden emergency, and upon plaintiff\u2019s evidence, was without fault in causing the emergency, and therefore the evidence fails to disclose negligence on his part under the circumstances.\n4. Trial \u00a7 22a\u2014\nPlaintiff must recover, if at all, on the basis of the evidence offered, and while on motion to nonsuit, the evidence must be considered in the light most favorable to plaintiff, no facts or inferences may be drawn from the evidence predicated upon a disbelief of her testimony.\nAppeal by plaintiff from Phillips, J., November 25, 1957, Civil Term, of RANDOLPH.\nPersonal injury action.\nPlaintiff alleged that the injuries she received on Sunday, November 11, 1956, shortly after midnight, were proximately caused by the defendant\u2019s negligent operation of his 1956 Mercury (4-door) automobile.\nAt the close of plaintiff\u2019s evidence, the court, upon defendant\u2019s motion, entered judgment of involuntary nonsuit.\nPlaintiff excepted and appealed.\nHammond & Walker for plaintiff, appellant.\nMoser & Moser and Vaughn, Hudson, Ferrell & Carter by Ralph M. Stockton, Jr., for defendant, appellee." }, "file_name": "0403-01", "first_page_order": 445, "last_page_order": 450 }