{ "id": 8570076, "name": "W. L. KINSEY, Administrator of the Estate of DAVID BETHEA, Deceased v. TOWN OF KENLY, CARL DURHAM, RALPH DAVIS, and EULA MAE STANCIL and KENNETH H. STANCIL", "name_abbreviation": "Kinsey v. Town of Kenly", "decision_date": "1965-01-15", "docket_number": "", "first_page": "376", "last_page": "383", "citations": [ { "type": "official", "cite": "263 N.C. 376" } ], "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": "136 S.E. 2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "261 N.C. 730", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575404 ], "opinion_index": -1, "case_paths": [ "/nc/261/0730-01" ] }, { "cite": "38 S.E. 2d 211", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8620241 ], "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/nc/226/0395-01" ] }, { "cite": "90 S.E. 2d 710", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 346", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624855 ], "pin_cites": [ { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0346-01" ] }, { "cite": "125 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "257 N.C. 121", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566050 ], "pin_cites": [ { "page": "125" } ], "opinion_index": 0, "case_paths": [ "/nc/257/0121-01" ] }, { "cite": "113 S.E. 2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "252 N.C. 300", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621287 ], "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/nc/252/0300-01" ] }, { "cite": "92 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "243 N.C. 760", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627239 ], "pin_cites": [ { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc/243/0760-01" ] } ], "analysis": { "cardinality": 768, "char_count": 19703, "ocr_confidence": 0.567, "pagerank": { "raw": 6.454307742971023e-08, "percentile": 0.3980593077048121 }, "sha256": "575f4e55a08db82d88849008740f93510f8811c8c9c4b4c170832b35c21d4cd9", "simhash": "1:eff7b456418a7d6b", "word_count": 3382 }, "last_updated": "2023-07-14T15:44:48.035422+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Moore, J., took no part in the consideration or decision of this case." ], "parties": [ "W. L. KINSEY, Administrator of the Estate of DAVID BETHEA, Deceased v. TOWN OF KENLY, CARL DURHAM, RALPH DAVIS, and EULA MAE STANCIL and KENNETH H. STANCIL." ], "opinions": [ { "text": "Bobbitt, J.\nWhile the administrator is now the party plaintiff, this is a personal injury action. Hereafter, David Bethea, the injured person- \u2014 -original plaintiff, will be referred to by name (Bethea) rather than as plaintiff or original plaintiff.\nBethea was injured about 12:05 a.m., on Sunday, October 30, 1960, as a result of a collision of -three automobiles. The collision occurred on U.S. Highway #301, a main north-south route, which passes through the Town of Kenly, a municipal corporation. Within the corporate limits of Kenly, in the area where the collision occurred, three lanes for northbound traffic (toward Wilson) are separated from three lanes for southbound traffic (toward Smithfield) by a (raised) concrete traffic island or median.\nWith further reference to the three lanes for northbound traffic: A curbing runs along the east side of said street or highway. The east lane, next to the curbing, is 13 feet wide. The center lane is 10% feet wide. The west lane is 10% feet wide.\nEast of said curbing, between the curbing and the sidewalk, there is a grass strip 4 feet wide; and the (paved) sidewalk is 4 feet wide. East of the sidewalk there is an embankment, \u201ca decline down into a field.\u201d\nNorth of where plaintiff was injured, Sixth Street, which is forty feet wide from curb to curb, intersects Highway #301.\nA car operated by one Everett Joyner, in which Bethea was a passenger, had stopped in the east lane (for northbound traffic) in response to a signal (siren) from a police car operated by defendant Durham. Defendant Davis was a passenger in the police car. Both Durham and Davis were police officers of Kenly. Durham stopped the police car to the rear of the Joyner car. Before stopping, the Joyner car and the police car had been proceeding north on Highway #301.\nJoyner and Durham, the drivers, got out on the left side of the cars. They were standing near the left rear of the Joyner car, within the east traffic lane. Durham was checking to determine whether Joyner had a driver\u2019s license.\nBethea and Davis, the passengers, got out on the right side of the cars. They were standing on the grass strip between the curbing and the sidewalk. A car operated by defendant Kenneth H. Stancil, traveling north, crashed into the rear of the police car, causing the police car to strike the Joyner car and Bethea. Davis, immediately before the crash, had \u201cjumped right over the embankment down the hill\u201d and was not injured.\nIt is admitted: (1) Kenneth Stancil, then 20 years of age, was operating the Stancil car as agent, within the family purpose doctrine, of his mother, defendant Eula Mae Stancil, the owner; (2) Durham and Davis were acting in the course of their employment as police officers of Kenly; (3) the Town of Kenly, after due notice thereof, had failed and refused to pay Bethea\u2019s claim; and (4) the Town of Kenly had secured liability insurance and to the extent thereof ($50,000.00) had waived its governmental immunity as provided in G.S. 160-191.1 et seq.\nThe record contains original pleadings consisting of (1) complaint, (2) answer of Town of Kenly, (3) joint answer of Durham and Davis and (4) answer of Eula Mae Stancil.\nThe record also contains the pleadings on which the case was tried, to wit: (1) amended complaint; (2) joint answer of Town of Kenly, Durham and Davis to amended complaint; (3) answer of Eula Mae Stancil to amended complaint; and (4) answer of Kenneth H. Stancil to amended complaint.\nIncluded in paragraph 7 of the original complaint, which consists largely of a description of the traffic lanes of Highway #301, is an allegation, \u201cand . . . the parking of any motor vehicle on said highway within the corporate limits of the Town of Kenly is unlawful and is prohibited.\u201d Appellants, in their answers to the original complaint, admitted the allegations of paragraph 7 thereof. Bethea offered in evidence appellants\u2019 said admission of the allegations of paragraph 7 of the original complaint.\nParagraph 7 of the amended complaint contains an allegation that \u201cno parking\u201d signs had been erected on both sides of Highway #301 in the Town of Kenly \u201cpursuant to ordinances duly adopted by the Town Board of the Town of Kenly on the 2nd day of May, 1960,\u201d and that Durham and Davis \u201cacted in express violation of the 'provisions of said Ordinance and the requirements of said \u2018no parking\u2019 signs when they parked the police vehicle . . . on U. S. Highway 301 and when they required . . . Joyner to park his vehicle on U. S. Highway 301.\u201d (Our italics).\nIt is alleged in paragraph 8 of the amended complaint \u201c (t) hat within the Town of Kenly the parking of any motor vehicle on said Highway 301 within the corporate limits of the Town of Kenly is unlawful and is prohibited.\u201d\nIn their joint answer to the amended complaint, appellants denied the allegations of paragraphs 7 and 8 thereof.\nWhile there was evidence as to the presence and location of \u201cno parking\u201d signs along Highway #301 within the corporate limits of Kenly, no ordinance relating thereto or otherwise purporting to regulate parking on Highway #301 was offered in evidence.\nThe amended (as well as original) complaint contains full allegations to the effect the officers were negligent in causing Joyner to stop and \u201cto park\u201d on Highway #301 and in stopping and \u201cparking\u201d the police car thereon and in \u201cparking\u201d the police car at an angle and in such manner that a portion thereof was in and \u201cfouling the center lane\u201d for northbound traffic.\nAllegations of the amended complaint with reference to lights or lack of lights on the police car are as follows: Durham and Davis, \u201cin parking the police vehicle ... at an angle on said highway, were negligent and careless in that any lights on the police vehicle did not reflect up and down the highway as required by law, but did reflect and shine across said highway. . . . some of the lights, if not all the lights, on the police vehicle had been turned off.\u201d Again: Durham and Davis \u201cparked said police vehicle at an angle on the highway . . . and at the time the police vehicle was not properly and adequately equipped with lights.\u201d The only other allegation with reference to lights is that contained in paragraph 6 of the amended complaint, to wit, that the officers \u201ccaused the plaintiff (Bethea) and the operator of. the vehicle in which plaintiff (Bethea) was riding to get out of said car and come to the rear of the car in which they were riding, in order that the officers might examine their driver\u2019s license in front of the headlights of said police automobile.\u201d (Our italics.)\nAll the evidence tends to show Joyner parked the car he was driving (a 1951 Ford owned by one Simms) wholly within the east lane, parallel and close to the curbing; and that, as testified by Joyner, \u201c(t)he headlights and taillights were burning\u201d on the Joyner car. Bethea testified: \u201cOur lights were on.\u201d\nEvidence favorable to Bethea tends to show that the police car, where stopped by Durham, was \u201ccatercornered,\u201d that is, headed diagonally across the east lane with the front close to the curbing and the rear extending into the center lane. A witness for Bethea testified: \u201cIt* was three or four feet into the center lane.\u201d Bethea\u2019s other evidence does not purport to fix how far it extended into the center lane. Evidence favorable to appellants tends to show the police car stopped wholly in the east lane, parallel and close to the curb, close to and directly behind the Joyner car; and that, as a result of the collision(s), the Joyner car was knocked straight forward a distance of 285 feet onto a shoulder (beyond Sixth Street) and down an embankment. (Note: North of Sixth Street Highway #301 \u201cgoes back into a dual road.\u201d)\nEvidence favorable to Bethea tends to show the Stancil car approached the scene of collision in the center lane and struck the left rear of the police car. Evidence favorable to appellants tends to show the Stancil car approached the scene of collision in the east lane and struck the police car directly in the rear thereof.\nEvidence favorable to Bethea tends to show there were no lights of any kind on the police car and that Durham was undertaking to check Joyner\u2019s driver\u2019s license by means of a flashlight. Evidence favorable to appellants tends to show the front and rear lights on the police car were burning; that a rotating or revolving red light, mounted on the dash of the police car, was burning; that this red light was observable and was observed by persons at-an intersection some two and one-half or three and one-half blocks south of the collision; that Durham, by waving his flashlight, undertook to attract Stancil\u2019s attention and cause him to bear to his left and use the ample space available for his use; and that the area was illuminated by street lights.\nIt is unnecessary to review evidence tending to support Bethea\u2019s allegations to the effect Kenneth H. Stancil operated his mother\u2019s car \u201cat a high and dangerous rate of speed,\u201d and \u201ccarelessly and recklessly and in wanton disregard of the rights and safety of others,\u201d and without keeping \u201ca careful and proper lookout,\u201d and \u201cviolently collided with\u201d the police car, and \u201cknocked the police vehicle with great force into and upon\u201d the Joyner car. Suffice to say, there was ample evidence to sustain the finding that Kenneth H. Stancil was guilty of actionable negligence. Incidentally, it is noted that Kenneth H. Stancil did not testify.\nAppellants contend their motion(s) for judgment of nonsuit should have been granted. However, the evidence most favorable to Bethea tends to show the Stancil car was traveling in the center lane for northbound traffic; that the police car was stopped and standing in such manner that a substantial portion of the rear thereof was in said center lane; that there were no burning lights on the police car; and that the presence and position of said cars were not disclosed by street lights. This evidence, independent of whether the Joyner and police cars were \u201cparked\u201d in violation of an ordinance of the Town of Kenly or in violation of G.S. 20-161 (a), was sufficient to require submission of the issue as to appellants\u2019 actionable negligence. Hence, appellants\u2019 motion (s) for judgment of nonsuit were properly overruled.\nIn an early portion of the charge, the court instructed the jury as follows: \u201cHowever, I charge you if you find from the testimony and by its greater weight, the burden being on the plaintiff to so satisfy you, that the defendant Durham did park his automobile or police automobile upon the public highway at night with its rear end extending into the middle or partly into the middle lane of Highway 301 without its lights burning; and that such act on his part was negligence and that such negligence was the proximate cause or one of the proximate causes combining and cooperating with the negligence of the defendant Kenneth H. Stancil, if you find that Kenneth H. Stancil was negligent then I charge you it would be your duty to answer that first issue YES.\u201d (Out italics.) It is noted that the court did not instruct the jury to answer the first issue, \u201cNo,\u201d if Bethea failed to satisfy the jury from the evidence and by its greater weight of all matters set forth in the quoted instruction.\nMuch later in the charge the court, with reference to the first issue, gave the following final instruction: \u201cIf you are satisfied from the testimony and by its greater weight, the burden being upon the plaintiff to so satisfy you that there was negligence on the' part of Mr. Durham in the way and manner that he parked the Town\u2019s car on the night in question and that such negligence was one of the proximate causes of the injury complained of and was not insulated by the negligence of the other defendant, you would answer the first issue YES. If you fail to be so satisfied, it would be your duty to answer it NO.\u201d\nUnder said final instruction, it seems clear the jury was permitted to find appellants guilty of actionable negligence solely on the basis of \u201cthe way and manner\u201d in which Durham \u201cparked the Town\u2019s car on the night in question.\u201d\nThe action of the officers in causing Joyner to stop and the stopping of the police car, solely to enable the officers to determine whether Joyner had a driver\u2019s license, did not constitute a parking of an automobile or automobiles in violation of G.S. 20-161 (a). Skinner v. Evans, 243 N.C. 760, 765, 92 S.E. 2d 209, and cases cited; Meece v. Dickson, 252 N.C. 300, 304, 113 S.E. 2d 578, and cases cited. A failure to display lights on a vehicle \u201cparked or stopped upon a highway\u201d in violation of G.S. 20-134 is a different matter. Melton v. Crotts, 257 N.C. 121, 125, 125 S.E. 2d 396. Nor did such action constitute a parking of an. automobile or automobiles in violation of an ordinance, if any, of Kenly relating to parking on Highway #301. As Stancil approached the scene of collision, there was available for his use the entire west lane for northbound traffic and (according to Bethea\u2019s evidence) all except three or four feet of the center lane, there was no other traffic that might have affected Stancil\u2019s operation.\nUnder the circumstances, we are of opinion, and so decide, that to establish the actionable negligence of appellants it was incumbent upon Bethea to satisfy the jury by the greater weight of the evidence not only that the police car was stopped in the way and manner Bethea contended but that it was standing without lights sufficient to disclose its presence and position. Hence, the said final instruction was incomplete, erroneous and prejudicial.\nBethea sustained serious injuries. His right leg was amputated. Since he suffered permanent disability, his life expectancy became a matter of major significance. Bearing thereon, the court instructed the jury as follows: \u201cHe (Bethea) contends . . . that at the time of the accident he was a man ... 46 years old, and his counsel have introduced the mortuary tables of the State which (indicates he had a life expectancy of some 26 years). You have a right to consider that; that is not conclusive; you are not bound by that.\u201d Appellants excepted to the portion within parentheses.\nThe court did not read to the jury the provisions of G.S. 8-46 or state in substance the provisions thereof. No instruction was given as to factors to be considered in determining life expectancy nor was the jury advised of their duty to make such determination. For reasons stated in Harris v. Greyhound Corporation, 243 N.C. 346, 354, 90 S.E. 2d 710, the instruction relating to life expectancy is incomplete and erroneous. See Starnes v. Tyson, 226 N.C. 395, 397, 38 S.E. 2d 211, and cases cited.\nFor the reasons stated, appellants are awarded a new trial.\nNew trial.\nMoore, J., took no part in the consideration or decision of this case.", "type": "majority", "author": "Bobbitt, J." } ], "attorneys": [ "Spence & Mast for plaintiff appellee.", "Smith, Leach, Anderson & Dorsett and William B. Britt for Town of Kenly and Carl Durham, defendant appellants." ], "corrections": "", "head_matter": "W. L. KINSEY, Administrator of the Estate of DAVID BETHEA, Deceased v. TOWN OF KENLY, CARL DURHAM, RALPH DAVIS, and EULA MAE STANCIL and KENNETH H. STANCIL.\n(Filed 15 January, 1965.)\n1. Automobiles \u00a7 4-le\u2014 Evidence that police car was stopped so as to block two lanes of three-lane traffic, and left standing without lights held to take issue of negligence to jury.\nThe evidence favorable to plaintiff tended to show that there were three northbound traffic lanes on the highway in question and that the driver of the car in which plaintiff was a passenger stopped in the east lane for northbound traffic in response to signal of police officers, that the police car was stopped back of it at an angle so that the front of the police car was in the eastern lane and the rear thereof extended into the center lane, that all occupants of both cars got out and were standing in the median, that the police ear was standing without lights, and that a northbound car hit the rear of the police car which struck the ear in which plaintiff had been riding and knocked it against plaintiff, causing the injury in suit. Beld: The evidence was sufficient to be submitted to the jury on the issue of negligence in stopping the police car in such manner and leaving it standing without lights.\n2. Automobiles \u00a7 9\u2014\nThe stopping of a police car on a highway solely to enable police officers to determine whether the driver of another ear had a driver\u2019s license does not constitute a parking of the police car in violation of G.S. 20-161 (a).\nS. Automobiles \u00a7 46\u2014\nWhere, under the circumstances, negligence must be predicated on the concurrent acts of defendant driver in stopping the car he was driving on the highway at an angle so as to block two traffic lanes and in leaving the ear standing in this position without lights sufficient to disclose its presence, an instruction which permits the jury to answer the issue o\u00ed negligence in the affirmative solely upon the jury\u2019s finding that the car was stopped at an angle in the manner indicated by plaintiff must be held for prejudicial error as being incomplete.\n4. Damages \u00a7 15\u2014\nAn instruction that counsel had introduced the mortuary tables and that the jury had the right to consider the tables but that they were not conclusive, without reading to the jury provisions of the statute, or stating its provisions in substance, must be held incomplete and erroneous. 6.S. 8-46.\nMooke, J., took no part in the consideration or decision of this case.\nApp(eal by defendants Town of Kenly and Carl Durham from judgment entered by Bickett, J., at June 1964 Session, on verdict returned after trial before Burgwyn, E. J., and a jury, at November 1963 Session Of JOHNSTON.\nDavid Bethea instituted this action June 2, 1961, to recover damages for personal injuries he sustained October 30, 1960, allegedly caused by the negligence of defendants.\nUpon trial at November 1963 Session, before Burgwyn, E. J., the jury answered issues as follows: \u201c1. Was the plaintiff injured as a result of the negligence of the defendants Carl Durham and Town of Kenly, as alleged in the Complaint? Answer: YES. 2. Was the plaintiff injured by the negligence of the defendants Kenneth H. Stancil and Eula Mae Stancil, as alleged in the Complaint? Answer: YES. 3. What damage, if any, is plaintiff entitled to recover of the defendants? Answer: $55,000.00.\u201d (Note: The action as to defendant Davis was nonsuited at the conclusion of plaintiff's evidence.) The court entered orders (1) reducing the amount of damages to $40,000.00 and (2) setting aside the verdict as to the first issue \u201cas a matter of law.\u201d On plaintiff\u2019s appeal therefrom, this Court held said orders erroneous and remanded the case for judgment on the verdict. Bethea v. Kenly, 261 N.C. 730, 136 S.E. 2d 38.\nOn May 25, 1964, David Bethea, original plaintiff, died; and W. L. Kinsey was appointed and qualified as administrator of David Bethea\u2019s estate.\nAt June 1964 Session, the said administrator was substituted for his intestate as party plaintiff, and plaintiff moved that the amount of damages awarded by the jury \u201cbe reduced to $50,000.00, in order to come within Article 15A of Chapter 160 of the General Statutes.\u201d Thereupon, based on the verdict rendered at November 1963 Session, judgment was entered by Bickett, J. \u201cthat the plaintiff have and recover of the defendants, Town of Kenly, Carl Durham, Eula Mae Stan-cil and Kenneth H. Stancil, the sum of Fifty Thousand ($50,000.00) Dollars,\u201d with interest and costs.\nDefendants Town of Kenly and Carl Durham excepted and appealed. Their assignments of error, apart from that based on their exception to the judgment, are based on exceptions taken during and with reference to the trial at November 1963 Session.\nSpence & Mast for plaintiff appellee.\nSmith, Leach, Anderson & Dorsett and William B. Britt for Town of Kenly and Carl Durham, defendant appellants." }, "file_name": "0376-01", "first_page_order": 414, "last_page_order": 421 }