{ "id": 8625489, "name": "JAMES L. VICKERS v. C. R. RUSSELL and T. L. McDANIEL", "name_abbreviation": "Vickers v. Russell", "decision_date": "1960-11-23", "docket_number": "", "first_page": "394", "last_page": "399", "citations": [ { "type": "official", "cite": "253 N.C. 394" } ], "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": "106 S.E. 2d 214", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "249 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613963 ], "opinion_index": 0, "case_paths": [ "/nc/249/0287-01" ] }, { "cite": "102 S.E. 2d 387", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 38", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618778 ], "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/nc/248/0038-01" ] }, { "cite": "86 S.E. 2d 786", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "242 N.C. 93", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609713 ], "opinion_index": 0, "case_paths": [ "/nc/242/0093-01" ] } ], "analysis": { "cardinality": 566, "char_count": 14159, "ocr_confidence": 0.517, "pagerank": { "raw": 7.728108280744093e-08, "percentile": 0.4545882790849968 }, "sha256": "1bd967cb4690518f76c97323d6e967506bbe955a67d6ccb2c3668e92ff088b1f", "simhash": "1:9f05cfe1ceef278f", "word_count": 2284 }, "last_updated": "2023-07-14T21:02:38.064481+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JAMES L. VICKERS v. C. R. RUSSELL and T. L. McDANIEL." ], "opinions": [ { "text": "Bobbitt, J.\nA plaintiff must make out his case secundum allegata. He cannot recover except on the case made by his pleading. Proof without allegation is no better than allegation without proof. Andrews v. Bruton, 242 N.C. 93, 86 S.E. 2d 786, andi cases cited.\nThe gist of plaintiff\u2019s factual allegations in original complaint is that (1) plaintiff \u201cwas thrown about the interior of . . . McDaniel\u2019s automobile\u201d and injured when the left front of the McDaniel car \u201cviolently collided\u201d with the rear of the Russell car, and (2) this occurred immediately after Russell attempted to make a left turn into Connell Crossing Street.\nIn the amendment, plaintiff did not delete any of his original allegations nor did he add to his original specifications of negligence, but alleged he \u201cwas first thrown about the interior of . . . McDaniel\u2019s automobile . . . when said automobile first came to a sudden stop,\u201d and that \u201cthe force and momentum which first dazed or knocked plaintiff unconscious occurred at the time of the collision or a moment before the collision when . . . McDaniel\u2019s automobile first came to a sudden stop.\u201d (Our italics.)\nThe amendment does not allege that McDaniel suddenly and negligently stopped his car prior to collision with the Bussell car and on account thereof plaintiff was \u201cthrown about the interior of McDaniel\u2019s automobile\u201d and injured. Indeed, if the amendment were construed as containing such allegation, the equivocal allegations of the amendment would be in direct conflict with the plain and explicit allegations of the original complaint.\nUncontradicted evidence tended to show:\nEast Main Street is thirty feet wide. It has no marked center line. Connell Crossing Street, approximately twenty feet wide, \u201ccomes to a dead end\u201d at East Main. Railroad tracks cross Connell Crossing Street approximately twenty-five feet (south) from the south curb of East Main. The elevation of Connell Crossing Street at the railroad tracks is five or six feet higher than its elevation at East Main.\nPlaintiff\u2019s wife, a sister of McDaniel, and two Vickers children, ages nine and eleven, were also guest passengers in the McDaniel car. Mrs. Vickers was on the front seat, between McDaniel, the driver, and plaintiff.\nThe \u201cleft front corner\u201d of the McDaniel car was damaged, i.e.; the left front fender, the headlight and part of the grille. The \u201cfront of the rear bumper\u201d and the trunk of the Russell car were damaged.\nRussell alleged his car was struck by the McDaniel car while he was waiting, almost completely stopped, for an approaching (east-boundi) car to pass before he made a left turn into Connell Crossing Street. In this connection, it is noted that plaintiff alleged the collision occurred immediately after Russell \u201cattempted\u201d to make a left turn into Connell Crossing Street.\nAccording to McDaniel\u2019s allegations, Russell completed a left turn into Connell Crossing Street and the collision occurred when the Russell car rolled backwards, down the sharp incline, the rear thereof striking the front of the McDaniel car. In this connection, it is noted that the complaint contains no allegation to the effect that a collision occurred in this manner.\nMcDaniel, offered by plaintiff, testified the collision occurred in the manner he had alleged; and both plaintiff and plaintiff's wife testified that the Russell car, having entered Connell Crossing Street, rolled back into the intersection and collided with the McDaniel car. As Mrs. Vickers expressed it: \u201cRussell . . . pulled up here and must have stopped, and then he shot back and hit the left front fender of the McDaniel car.\u201d Under this testimony, the negligence of Russell in backing his car or permitting it to roll backwards into the intersection was the proximate cause of its collision with the McDaniel car. But the complaint contains no allegation that Russell was negligent in this respect or that the collision occurred in this factual situation.\nAs to McDaniel, plaintiff and his wife testified in substance: McDaniel \u201csuddenly stopped\u201d his car. When this occurred, plaintiff was thrown into the windshield and momentarily dazed. Thereafter, the Russell car rolled back from Connell Crossing Street and struck the (stopped) McDaniel car. As indicated above, negligence of McDaniel, if any, in suddenly stopping his car prior to collision with the Bussell car was not alleged. It is noted that plaintiff, on cross-examination, testified: \u201cThe first time I ever said anything about McDaniel\u2019s car coming to a sudden stop was in here on the witness stand today.\u201d\nIn addition, plaintiff testified: \u201cMy belief is there were two collisions. The first one when the McDaniel car came to a sudden stop. The front of the McDaniel car hit the Russell ear, and it went forward up the incline, and the Russell car rolled back down and collided with the left front of the McDaniel car and knocked the hood open.\u201d But this testimony as to plaintiff\u2019s belief there were two collisions was stricken by the court in view of plaintiff\u2019s further testimony, in the absence of the jury, that the only collision he saw occurred when the Russell car backed into the McDaniel car and the only reason he had to believe there had been a prior collision was the fact that the McDaniel car \u201csuddenly stopped.\u201d Plaintiff did not except to this ruling. Moreover, there is no allegation that more than one collision occurred.\nThere is testimony tending to show that each of the defendants was negligent in certain of the respects alleged by plaintiff. Whether such alleged negligence is related to plaintiff\u2019s injuries as a proximate cause thereof depends upon the basic factual situation. As indicated above, plaintiff\u2019s evidence tends to establish a basic factual situation at variance in material respects from that alleged. Nothing appears to indicate that plaintiff moved for leave to amend his complaint to conform to the evidence offered by him at trial.\nConfronted by the material variance betweeen plaintiff\u2019s allegations and proof, the court below properly entered judgment of involuntary nonsuit. Lucas v. White, 248 N.C. 38, 42, 102 S.E. 2d 387, and cases cited; Moore v. Singleton and Hall v. Singleton, 249 N.C. 287, 106 S.E. 2d 214. As stated by Winborne, C. J., in Lucas v. White, supra: \u201cThe court cannot take notice of any proof unless there is a corresponding allegation.\u201d\n\u25a0 It is noted that judgment of involuntary nonsuit for material variance between allegata and probata does not preclude plaintiff from instituting a new action.\nIn view of the basis of decision, it is unnecessary to consider plaintiff's assignment of error directed to the overruling by the court of plaintiff\u2019s demurrer to McDaniel\u2019s further defense based on alleged estoppel.\nAffirmed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "W. H. Steed for plaintiff, appellant.", "Walser & Brinkley for defendant Bussell, appellee.", "Smith, Moore, Smith, Schell & Hunter for defendant McDaniel, appellee." ], "corrections": "", "head_matter": "JAMES L. VICKERS v. C. R. RUSSELL and T. L. McDANIEL.\n(Filed 23 November, 1960.)\n1. Pleadings \u00a7 2S\u2014\nPlaintiff\u2019s proof must conform to bis allegations, since proof without allegation is ineffectual.\n2. Automobiles \u00a7 41a\u2014\nPlaintiff passenger\u2019s allegations were to the effect that bis injuries resulted from a collision occurring when one defendant turned left to enter an intersecting street and collided with the car in which plaintiff was riding, and which was driven by the other defendant, as this defendant was attempting to pass at the intersection. Plaintiff\u2019s evidence tended to show that the ear in which he was riding stopped suddenly and that the collision occurred when the other car, which had started to turn left and had stopped, rolled backward down a steep grade and struck the car in which plaintiff was riding. Held: Nonsuit for variance was proper.\n3. Trial \u00a7 23f\u2014\nWhere there is a material variance between plaintiff\u2019s allegations and proof, nonsuit is proper.\nAppeal by plaintiff from Johnston, J., April Term, 1960, of Davidson.\nPersonal injury action instituted March 28, 1959, growing out of a collision in Thomasville, N. C., on June 16, 1958, about 5:30 p.m., between a 1946 Chevrolet owned and operated by defendant McDaniel and a 1951 Chevrolet owned and operated by defendant Russell. Plaintiff, a guest passenger in the McDaniel car alleges the collision and his injuries were proximately caused by the joint and concurring negligence of defendants.\nAccording to plaintiff\u2019s allegations in original complaint, the factual situation on which the allegations of negligence are based was, in substance, as follows:\nBoth cars were traveling west on East Main Street, \"the McDaniel car following the Russell car \u201cvery closely,\u201d as they approached the \u201cT\u201d intersection where Connell Crossing Street extends south from East Main. Russell was driving \u201con his extreme right hand side . . . within a few feet of the curb,\u201d and McDaniel was driving \u201cin the center . . . with the left wheels ... a few feet over the center thereof to his left.\u201d McDaniel \u201cwas attempting to pass . . . Russell as they approached said intersection and . . . Russell, without giving any signal whatsoever, attempted to make a left turn into . . . Connell Crossing Street before he reached the center of the intersection, and immediately thereafter the left front of . . . McDaniel\u2019s automobile and the rear of . . . Russell\u2019s automobile violently collided, at which time plaintiff was thrown about the interior of . . . McDaniel\u2019s automobile and his head andi shoulders were struck,\u201d and plaintiff was severely and permanently injured.\nPlaintiff alleged McDaniel was negligent in that: (a) In violation of G.S. 20-152, McDaniel was following the Russell car more closely than was reasonable and prudent, (b) In violation of G.S. 20-150, McDaniel was attempting to overtake and pass the Russell car at said intersection.\nPlaintiff alleged Russell was negligent in that: (a) In violation of G.S. 20-154, Russell made a left turn from a direct line without first seeing that such movement could be made in safety and without giving any signal of his intention to make such turn, (b) In violation of G.S. 20-153, Russell, intending to make a left turn into Connell Crossing Street, dad not approach the intersection in the trafile lane to the right of and nearest to the center of East Main Street and did not pass beyond the center of the intersection and to the right thereof before turning his car to the left.\nPlaintiff alleged (in general terms) that each defendant operated his automobile carelessly and heedlessly, in wilful and wanton disregard of the rights and safety of others, and without due caution and circumspection, and at a speed and in a manner so as to endanger or be likely to endanger persons and property upon said streets.\nMcDaniel, answering, denied negligence on his part and alleged the collision was caused solely by the negligence of Russell. McDaniel\u2019s factual allegations, in substance, are as follows: Proceeding south on Connell Crossing Street, there is a sharp incline leading up to the railroad tracks. Russell made a sudden left turn into Connell Crossing Street from East Main without giving any signal and \u201cas he started up the sharp incline, his automobile suddenly came to a stop and immediately rolled backwards into the intersection,\u201d the rear end of the Russell car crashing into the left front of the McDaniel car. Upon observing the Russell car backing towards him, McDaniel \u201cimmediately turned to his right but was unable to avoid being struck by the Russell automobile.\u201d\nAs a further defense, McDaniel pleaded as an estoppel the judgment roll in a prior action instituted in the Superior Court of Davidson County on August 30, 1958, in which the plaintiff herein had sued the defendants herein for damages for personal injuries caused by said accident of June 16, 1958. McDaniel attached to and made a part of his answer copies of the papers alleged to constitute said judgment roll. It appears therefrom that, in said prior action, a demurrer by McDaniel to the complaint was sustained November 1, 1958; that the plaintiff did not appeal or except; that McDaniel was not required to file and did not file an answer to the complaint but was required to answer and diid answer Russell\u2019s cross complaint against McDaniel for contribution under G.S. 1-240; and that judgment of voluntary nonsuit was entered on March 28, 1959, the daj' on which plaintiff instituted the present action.\nRussell, answering herein, denied negligence on his part and alleged the collision was caused solely by the negligence of McDaniel. Russell\u2019s factual allegations, in substance, are as follows: The McDaniel car was following the Russell car very closely. While traveling in his right lane on East Main Street, Russell slowed his car, gave a proper signal for a left turn and brought his car almost to a complete stop before making the left turn in order to allow an automobile approaching (eastbound) on East Main Street to pass. When this occurred, the McDaniel car ran into the rear of the Russell car. Russell\u2019s answer contains a cross complaint against McDaniel for contribution under G.S. 1-240.\nAfter defendants had answered, plaintiff was permitted to file an amendment to complaint in which he alleged: \u201c5A. That when plaintiff was first thrown about the interior of defendant McDaniel\u2019s automobile as aforesaid, his head and shoulders struck the right front windshield and dash board of the same, which occurred when said automobile first came to a sudden stop; that plaintiff was momentarily dazed or knocked: unconscious, during which time he was unable to see for a few moments; that the force and momentum which first dazed or knocked plaintiff unconscious occurred at the time of the collision or a moment before the collision when defendant McDaniel\u2019s automobile first came to a sudden stop.\u201d Except as amended, plaintiff adopted and ratified his original complaint.\nAt the conclusion o\u00ed plaintiff\u2019s evidence, the court, allowing the motion of each defendant therefor, entered judgment of involuntary nonsuit as to both defendants and dismissed the action at the cost of plaintiff. Plaintiff excepted and appealed.\nW. H. Steed for plaintiff, appellant.\nWalser & Brinkley for defendant Bussell, appellee.\nSmith, Moore, Smith, Schell & Hunter for defendant McDaniel, appellee." }, "file_name": "0394-01", "first_page_order": 434, "last_page_order": 439 }