{ "id": 8572222, "name": "FLORA DALE R. AMMONS and CARLTON E. AMMONS, Administrators of GWENDOLYN FAYE AMMONS, Deceased, v. MARY WADDELL BRITT", "name_abbreviation": "Ammons v. Britt", "decision_date": "1962-01-12", "docket_number": "", "first_page": "248", "last_page": "251", "citations": [ { "type": "official", "cite": "256 N.C. 248" } ], "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": "123 S.E. 2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "115 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 787", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626003 ], "pin_cites": [ { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0787-01" ] }, { "cite": "121 S.E. 2d 885", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 494", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570562 ], "pin_cites": [ { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0494-01" ] }, { "cite": "95 S.E. 2d 541", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "245 N.C. 123", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8606196 ], "pin_cites": [ { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/nc/245/0123-01" ] }, { "cite": "102 S.E. 2d 124", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "247 N.C. 693", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628312 ], "opinion_index": 0, "case_paths": [ "/nc/247/0693-01" ] } ], "analysis": { "cardinality": 515, "char_count": 10506, "ocr_confidence": 0.551, "pagerank": { "raw": 3.629473861806989e-07, "percentile": 0.8890506743829466 }, "sha256": "8abb659ff9fa033866f3767dacf3c9d28ac6f5863060a4003e244eae233ea0e0", "simhash": "1:f42fc82d313c9a0d", "word_count": 1759 }, "last_updated": "2023-07-14T16:51:02.884412+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FLORA DALE R. AMMONS and CARLTON E. AMMONS, Administrators of GWENDOLYN FAYE AMMONS, Deceased, v. MARY WADDELL BRITT." ], "opinions": [ { "text": "Bobbitt, J.\nEvidence offered by plaintiffs, when considered in the light most favorable to them, tends to show these facts: Shortly before 8:00 o\u2019clock, on the morning of August 30, 1960, Gwendolyn\u2019s mother took her to the Caulder residence. Mrs. Caulder, as theretofore, was to care for Gwendolyn while her mother was at work. Before leaving, Gwendolyn\u2019s mother gave her permission \u201cto go to the store that morning.\u201d The collision occurred about 1:50 p.m. \u201c (A) short time\u201d \u2014\u201cnot too long\u201d \u2014 prior to the collision, Jewel Parker, from the living room of the Caulder residence, saw Gwendolyn. She was then in front of the Buck Webb residence, standing still, near the west edge of the paved portion of Carolina Avenue, with a pepsi-cola in one hand and a coca-cola in the other. (This dirt shoulder extended approximately six feet from the Buck Webb hedge to the west edge of the paved portion of Carolina Avenue.) After hearing a noise, \u201clike she (Gwendolyn) dropped a bottle,\u201d Jewel Parker went out and saw Gwendolyn lying on the paved portion of Carolina Avenue, \u201con the side next to Buck Webb\u2019s.\u201d Gwendolyn was then \u201clying sort of slanting,\u201d with her head \u201ctoward Buck Webb\u2019s\u201d and her feet some three feet onto the paved portion of Carolina Avenue. The area where Gwendolyn was standing could be seen by motorists traveling south on Carolina Avenue for a distance of five hundred yards.\nEvidence offered by defendant included the following:\nDefendant testified she \u201cwas driving around thirty-five\u201d; that she did not see Gwendolyn until \u201cshe was right in front of (her) car\u201d; that \u201cit happened so quick\u201d she could not say \u201cwhether or not the child was running, walking or standing still when (she) first saw her\u201d; that she tried to turn to her left but it was too late to avoid striking the child; that, as a result of the collision, her right front parking light was broken; and that she did not remember seeing a truck coming towards her on Carolina Avenue.\nThe investigating officer, a witness for defendant, testified he found \u201ca spot of blood\u201d on the paved portion of Carolina Avenue approximately six feet south \u201cof the walkway up to Buck Webb\u2019s house\u201d and \u201capproximately two feet from the (west) edge of the paved portion.\u201d\nWalters, a witness for defendant, testified he was driving a truck north on Carolina Avenue; that he, when one hundred yards therefrom, saw the collision; that he saw the child before he saw defendant's car; that the child came out of the walkway to the Buck Webb residence, \u201cbetween two hedges,\u201d running. He testified he \u201cwondered if the child was going to stop when she got to the street\u201d; that \u201c(b)y this time (he) had seen the car coming\u201d; that when he saw the child running defendant \u201cwas right on the child\u201d; that defendant was \u201cpretty close to where the child was when (he) first saw her\u201d; and that the child did not stop on the shoulder but ran \u201cinto this lady\u2019s car,\u201d striking \u201cthe round part\u201d on the right front fender.\nWe deem it unnecessary to review the evidence in greater detail.\nIt is noted that Gwendolyn, a six-year old child, was incapable of contributory negligence as a matter of law. Walston v. Greene, 247 N.C. 693, 102 S.E. 2d 124. Our sole inquiry is to determine whether,, upon application of well established rules, the evidence was sufficient for submission to the jury as to whether the collision and Gwendolyn\u2019s death were proximately caused by negligence on the part of defendant.\nThe only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. 1-183. In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiffs or by defendant, must be considered in the light most favorable to plaintiffs. Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E. 2d 541; Eason v. Grimsley, 255 N.C. 494, 496, 121 S.E. 2d 885. True, the court may consider evidence offered by defendant that \u201ctends to clarify or explain evidence offered by plaintiff not inconsistent therewith, but it must ignore that which tends to establish another and different state of facts or which tends to contradict or impeach the testimony presented by plaintiff. (Citations) Otherwise, consideration would not be in the light most favorable to plaintiff. (Citations) \u201d Watters v. Parrish, 252 N.C. 787, 795, 115 S.E. 2d 1.\nDefendant contends the testimony of Jewel Parker \u201cis not connected in point of time with the defendant\u2019s approach to the intersection\u201d and therefore her testimony is not inconsistent or in conflict with that of Walters. Defendant suggests that Gwendolyn might have gone into the Buck Webb yard after Jewel Parker saw her. True, Jewel Parker testified she did not see the collision and that she was watching television when she heard the noise that attracted her attention. But she testified she heard the noise \u201ca short time\u201d \u2014 \u201cnot too long\u201d \u2014 after she saw Gwendolyn.\nWhen the evidence is considered in the light most favorable to plaintiffs, the inference is permissible that Gwendolyn, with a bottle in each hand, was on her way back to the Caulder residence from the store and upon reaching the place where Jewel Parker observed her stood on or near the west edge of the pavement awaiting an opportunity to cross the street to the Caulder residence. Moreover, the credibility of Walters\u2019 testimony was for jury determination. Defendant, according to her testimony, did not see Gwendolyn until the moment of impact although she was much closer to her than Walters. Indeed, defendant testified she did not remember seeing Walters\u2019 truck. Walters, according to his testimony, was a hundred yards away when the impact occurred. According to Walters, the child ran into the side (right front fender') of defendant\u2019s car. Defendant testified she saw the child right in front of her at the moment of impact and that her right front parking light was broken as a result of the collision.\nWhether defendant, in driving 35 miles per hour, was negligent in respect of speed depends largely on whether in the exercise of due care she could and should have seen Gwendolyn in a perilous position at a time when she could by decreasing speed have avoided the collision. Cassetta v. Compton, ante, 71, 123 S.E. 2d 222.\nApplying the applicable well settled rules, we are of opinion, and so decide, that the evidence was sufficient for submission to the jury on the issues raised by the pleadings. Hence, the judgment of involuntary nonsuit is reversed.\nKeversed.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Varser, McIntyre & Hedgpeth and Hackett & Weinstein for plaintiffs appellants.", "Johnson, Biggs & Britt for defendant appellee." ], "corrections": "", "head_matter": "FLORA DALE R. AMMONS and CARLTON E. AMMONS, Administrators of GWENDOLYN FAYE AMMONS, Deceased, v. MARY WADDELL BRITT.\n(Filed 12 January, 1962.)\n1. Appeal and Error \u00a7 51\u2014\nWhere defendant introduces evidence, only the motion to nonsuit made at the close of all the evidence will be considered.\na. Trial \u00a7 21\u2014\nWhere defendant introduces evidence and renews his motion to nonsuit, the court must consider all of the evidence, whether offered by plaintiff or defendant, in the light most favorable to plaintiff, but even so, only that evidence offered by defendant that tends to clarify or explain plaintiff\u2019s evidence and is not in conflict therewith may be considered, and defendant\u2019s evidence which tends to establish another or different state of facts or which tends to contradict or impeach plaintiff\u2019s testimony should not be considered, the credibility of defendant\u2019s evidence being a question for the jury.\n3. Automobiles \u00a7 41m\u2014\nPlaintiff\u2019s evidence that their intestate, a six-year old child, was standing on the shoulder of the road waiting to cross immediately prior to the accident and that at such point the child could have been seen by a motorist some five hundred yards away, is held to take the issue of negligence to the jury upon the question whether defendant, in the exercise of due care, could and should have seen the child in a perilous position at a time when she could and should have taken steps to avoid the injury, notwithstanding testimony of a witness for defendant that the child ran into the street without stopping and collided with the right side of defendant\u2019s vehicle.\nAppeal by plaintiffs from McKinnon, J., July Civil Term 1961 of Robeson.\nAdministrators\u2019 action to recover damages for the wrongful death of their intestate, a six-year old girl, allegedly caused by the negligence of defendant.\nIt was stipulated that the intestate, Gwendolyn Faye Ammons, \u201ccame to her death on August 30, 1960, as a result of a collision between her person and the automobile driven by Mary Waddell Britt.\u201d\nThe collision occurred in a residential district of Lumberton, on Carolina Avenue, a short distance south of its intersection with B Avenue. Carolina Avenue runs generally north-south. It is straight, level and paved to a width of approximately twenty feet, with dirt shoulders. There are no sidewalks.\nPrior to and at the time of the collision, defendant was operating a 1952 Ford automobile south on Carolina Avenue.\nMrs. Caulder\u2019s residence was on the southeast corner of said intersection and the Buck Webb residence was on the southwest corner. Both fronted on Carolina Avenue and were on opposite sides of and directly across the street from each other. A hedge was along the front of the Buck Webb premises. A break in this hedge was in line with the approach from Carolina Avenue to the steps and porch of the Buck Webb residence. In back of the Buck Webb residence, fronting towards B Avenue and ten feet back (south) therefrom was the Buck Webb store. There was no sidewalk along the south side of B Avenue. A dirt path extended from the area in front of the store, near and approximately parallel with the side of the residence, to the southwest corner of said intersection.\nAdditional pertinent facts will be stated in the opinion.\nPlaintiffs alleged, inter alia, that defendant, by the exercise of due care, could and should have observed their intestate on or near Carolina Avenue, and by sounding her horn, reducing her speed, or stopping, could and should have avoided the collision and the intestate\u2019s death, and that her failure to do so constituted actionable negligence.\nDefendant, by answer, denied plaintiffs\u2019 allegations as to her negligence.\nEvidence was offered by plaintiffs and by defendant.\nAt the close of all the evidence, the court, allowing defendant\u2019s motion therefor, entered judgment of involuntary nonsuit. Plaintiffs excepted and appealed.\nVarser, McIntyre & Hedgpeth and Hackett & Weinstein for plaintiffs appellants.\nJohnson, Biggs & Britt for defendant appellee." }, "file_name": "0248-01", "first_page_order": 284, "last_page_order": 287 }