{ "id": 8559739, "name": "THOMAS SMITH and JEANNIE RUTH HEGGINS v. GORDON T. VonCANNON and KIRK'S TAXI SERVICE, INC.", "name_abbreviation": "Smith v. VonCannon", "decision_date": "1973-07-12", "docket_number": "No. 64", "first_page": "656", "last_page": "664", "citations": [ { "type": "official", "cite": "283 N.C. 656" } ], "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": "194 S.E. 2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "17 N.C. App. 438", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555880 ], "opinion_index": -1, "case_paths": [ "/nc-app/17/0438-01" ] }, { "cite": "179 S.E. 2d 424", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 227", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560022 ], "pin_cites": [ { "page": "232" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0227-01" ] }, { "cite": "35 A.L.R. 2d 335", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "opinion_index": 0 }, { "cite": "95 L.Ed. 1233", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "341 U.S. 622", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1148157 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/us/341/0622-01" ] }, { "cite": "174 A.L.R. 471", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "174 A.L.R. 462", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "74 N.E. 2d 674", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "321 Mass. 603", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 499777 ], "opinion_index": 0, "case_paths": [ "/mass/321/0603-01" ] }, { "cite": "171 S.E. 63", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "205 N.C. 257", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628051 ], "opinion_index": 0, "case_paths": [ "/nc/205/0257-01" ] }, { "cite": "18 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8692702 ], "opinion_index": 0, "case_paths": [ "/nc/18/0371-01" ] }, { "cite": "24 N.C. 42", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8683997 ], "opinion_index": 0, "case_paths": [ "/nc/24/0042-01" ] }, { "cite": "10 S.E. 2d 804", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "218 N.C. 287", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8617281 ], "opinion_index": 0, "case_paths": [ "/nc/218/0287-01" ] }, { "cite": "193 S.E. 735", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "212 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613736 ], "opinion_index": 0, "case_paths": [ "/nc/212/0520-01" ] }, { "cite": "97 S.E. 2d 457", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "246 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623930 ], "opinion_index": 0, "case_paths": [ "/nc/246/0063-01" ] }, { "cite": "122 S.E. 2d 513", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "255 N.C. 686", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572337 ], "opinion_index": 0, "case_paths": [ "/nc/255/0686-01" ] }, { "cite": "179 S.E. 2d 396", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559876 ], "opinion_index": 0, "case_paths": [ "/nc/278/0153-01" ] }, { "cite": "180 S.E. 2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "278 N.C. 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560580 ], "opinion_index": 0, "case_paths": [ "/nc/278/0390-01" ] }, { "cite": "188 S.E. 2d 441", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 174", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574497 ], "opinion_index": 0, "case_paths": [ "/nc/281/0174-01" ] }, { "cite": "189 S.E. 2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "281 N.C. 582", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575673 ], "opinion_index": 0, "case_paths": [ "/nc/281/0582-01" ] } ], "analysis": { "cardinality": 852, "char_count": 19078, "ocr_confidence": 0.501, "pagerank": { "raw": 3.3537960755379155e-07, "percentile": 0.8748809293514795 }, "sha256": "6940616c851688c9f977da89ccfe8731b7279227c8b5a81ac9f95672f7db72bd", "simhash": "1:cf6161650293233c", "word_count": 3316 }, "last_updated": "2023-07-14T22:42:12.699050+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THOMAS SMITH and JEANNIE RUTH HEGGINS v. GORDON T. VonCANNON and KIRK\u2019S TAXI SERVICE, INC." ], "opinions": [ { "text": "LAKE, Justice.\nThe question for the reviewing court on an appeal from a judgment on a directed verdict in favor of the defendant is the same as that presented by an appeal from a judgment of involuntary nonsuit under our practice prior to the adoption of the Rules of Civil Procedure. Younts v. Insurance Co., 281 N.C. 582, 189 S.E. 2d 137; Investment Properties v. Allen, 281 N.C. 174, 188 S.E. 2d 441; Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297; Kelly v. Harvester Co., 278 N.C. 153, 179 S.E. 2d 396. Thus, the question presented by this appeal is whether the evidence in the record, considered in the light most favorable to the plaintiffs and giving them the benefit of every reasonable inference therefrom, would have been sufficient to support a verdict in their favor.\nEvidence that the defendant drove an automobile off the public highway and across private property so that it struck a building is not sufficient to entitle the innocent owner of the building to recover damages. Schloss v. Hallman, 255 N.C. 686, 122 S.E. 2d 513; Smith v. Pate, 246 N.C. 63, 97 S.E. 2d 457. The right of the owner of the building to recover for such damage to his property must rest on proof of some wrongful act or neglect of the defendant, which was the proximate cause of the injury. Smith v. Pate, supra; Catoe v. Baker, 212 N.C. 520, 193 S.E. 735; Restatement, Torts, 2d, \u00a7 158, comment e, and \u00a7 166.\nThe plaintiffs do not contend that the cab driver was negligent. Their evidence is that he brought his vehicle to a stop four to six feet from the wall of the house and, thereupon, was suddenly, unexpectedly and violently assaulted by his passenger and, in the ensuing scuffle, the cab rolled down hill and struck the house. This would support an inference that the driver stopped the car, held his foot on the driving brake but did not set the parking brake. In the absence of any evidence that he should have anticipated such an assault by his passenger, this would not constitute negligence. Neither would his removal of his foot from the driving brake in the course of the sudden, unexpected assault upon him constitute negligence. One faced with a sudden emergency, not reasonably to be anticipated, is not held to a standard of care greater than that which a reasonable person would exercise under like circumstances. Schloss v. Hallman, supra.\nThe plaintiffs contend that they are entitled to recover because the cab driver was a trespasser on their property. If so, he would be liable for all damage proximately resulting from his wrongful entry and, at least, for nominal damages. Lee v. Stewart, 218 N.C. 287, 10 S.E. 2d 804; Newsom v. Anderson, 24 N.C. 42; Dougherty v. Stepp, 18 N.C. 371; 7 Strong, N. C. Index 2d, Trespass, \u00a7 8. If the plaintiffs are entitled to even nominal damages, the directed verdict in favor of the defendants would be error. Lee v. Stewart, supra.\n\u201cA trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor\u2019s consent or otherwis\u00e9.\u201d Restatement, Torts, 2d, \u00a7 329. Conversely, \u201cA licensee is a person who is privileged to enter or remain on land only by virtue of the possessor\u2019s consent.\u201d Restatement,. Torts, 2d, \u00a7 330. Having such privilege the licensee is not liable in damages for such entry. Dobbs, Trespass to Land in North Carolina, 47 N.C. Law Rev. 31, 50.\nThe defendants do not contend that the cab driver had a right to enter upon the land, of the plaintiffs, except insofar as such right was acquired. through their consent. One who enters upon the land of another with the consent of the possessor may, by his subsequent wrongful act in excess or abuse of his authority to enter, become liable in damages as a trespasser. Freeman v. Acceptance Corporation, 205 N.C. 257, 171 S.E. 63. In the present case, however, there is no evidence of any voluntary act by the cab driver after he brought his vehicle to a stop following the initial entry onto the property of the plaintiffs.\nHad the cab driver originally brought his cab to a\u2019 stop on the highway and, thereafter, due to the assault upon him by his; passenger, the cab had- rolled down the driveway and struclo the house, this would not have been a trespass rendering the> driver liable for such damage. Schloss v. Hallman, supra. \u201cExcept where the actor is engaged in an abnormally dangerous activity, an unintentional and non-negligent entry on land in possession of another, or causing ,a thing or third person to; enter the land, does not subject the actor to liability to the' possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest.\u201d Restatement, Torts, 2d, \u00a7 166. See also, 52 Am. Jur. Trespass, \u00a7 7; 7. Strong, N. C. Index 2d, Trespass, \u00a7 1; Dobbs, Trespass, to Hand in North Carolina, 47 N. C. Law Rev. 31, 32. At least, so fax as the liability of the intruder to the landowner is concerned, as the Supreme Court of Massachusetts has said, \u201cThe trend of modern authority is; that an unintended intrusion upon the land in possession of another does not constitute a trespass.\u201d Edgarton v. H. P. Welch Co., 321 Mass. 603, 74 N.E. 2d 674, 174 A.L.R. 462. See, however, annot, 174 A.L.R. 471, criticizing the Massachusetts decision for extending- this rule to the matter of the liability of the landowner for injury to such intruder, a point not. presently; before us. We perceive no basis for a distinction between ,an involuntary intrusion upon the land of another and an involving tary exceeding of the landowner\u2019s .assent to the original entry,' so far as liability for damage to the land is. concerned. Therefore, unless the cab driver\u2019s original entry into the driveway of the plaintiffs-was a trespass, there is no basis upon, which he,' and so his employer, can be held liable for the damage to the house.\nThe plaintiffs\u2019 right .to recover in this action depends, therefore, ;up.on whether the cab driver entered their driveway, with,or without their apparent consent. \u201cAn entry on land in the possession of another is privileged as against the possessors in so far, as itiis pursuant to his consent ***.\u2019\u2019 Restatement, Torts, \u00a7 167. The consent of the person in possession of the land to such entry may be implied. 52 Am. Jur., Trespass, \u00a7 39, An apparent consent.is sufficient if brought about by acts- of; the possessor. It need hot be an invitation to enter, which,carries with it the idea of a desire oh the part of the one in possession' that such entty be made. It is sufficient that his conduct be such as to indicate that he consents to the entry, if the other person desires to come upon the land. Restatement, Torts, 2d, \u00a7 330, comments b, c, d and e; 52 Am. Jur., Trespass, \u00a7 39; 87 C.J.S., Trespass, \u00a7 49, b; Dobbs, Trespass to Land in North Carolina, 47 N.C. Law Rev. 31, 52; Prosser on Torts, \u00a7 60.\nIn 'determining- whether one who enters upon the land of another could reasonably have concluded from the conduct of the landowner that he had permission to do so, regard is to be had to customs prevailing in the community. \u201c \u2018The well-established usages of a civilized and Christian community\u2019 entitle everyone to assume that a possessor'of. land is willing to permit- them ip enter for certain purposes until a. particular possessor expresses unwillingness to admit, them. Thus, a traveler who is overtaken by a violent storm or who has lost his way, is entitled to assume that there is no objection to his going to a neighboring house for shelter or direction.\u201d Restatement, Torts, 2d, \u00a7. 330, comment e. '\nIn the present case, there was no communication between the plaintiffs and the cab driver prior to the entry, The consent of the landowners to the.entry, if any, must be predicated upon the existence of the driveway leading into their \u2018 property from the public street. The record shows that the cab entered the driveway and stopped four to six feef from the wall of the house and that the house is 15 and one-half feet from the property line. Thus, the cab was brought to a stop approximately within its own length inside the plaintiffs\u2019 property and upon the driveway.\nIn Breard v. Alexandria, 341 U.S. 622, 71 S.Ct. 920, 95 L.Ed. 1233, 35 A.L.R. 2d 335, Mr. Justice Reed, speaking for the Court, said, \u201cIt is true that the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers for all kinds of salable articles.\u201d See also, 52 Am. Jur., Trespass, \u00a7 39. Likewise, the construction of a driveway or a walkway leading to the entrance of a residence may, in the absence of notice to the contrary, be reasonably construed, not only by acquaintances of the landowner but also by strangers, as an expression of the landowner\u2019s consent to their entry thereon for the purpose of approaching and entering the house on any lawful mission.\nThe cab driver\u2019s right to enter such driveway is as extensive as the apparent right of his passenger. See, Airport Authority v. Stewart, 278 N.C. 227, 232, 179 S.E. 2d 424. In the absence of notice to the contrary, a stranger to the occupant of a house is entitled to assume that he may walk to the front door thereof, or drive into the driveway for that purpose, without being sued for trespass. A cab driver carrying his passenger to the house is entitled, in the absence of notice to the contrary, to make the same assumption in assisting his passenger on arrival thereat.\nThe evidence in the record before us does not show specifically that the passenger in the taxicab directed YonCannon to carry him to the plaintiffs\u2019 residence. However, it does show that he directed the driver to carry him down York Road and that this was the last house on that dead-end street. Nothing else appearing, the driver could reasonably conclude that his passenger, not having directed him to stop at any other house on the street, had this, the last one, as his destination.\nAssuming that the passenger did not indicate that this house was his destination, there was nothing for the cab driver to do but turn around, York Road coming to a dead-end a few feet beyond this driveway. While the diagram of this location, which is part of the record, indicates that, at the end of York Road some 50 to 100 feet further, there was an area, to the driver\u2019s left, used for turning\u2019, there is nothing in the record to show that this area, itself, was not on private property. The custom of motorists in such a situation to head into a driveway for the purpose of backing out and turning around is widespread. In the absence of any contrary indication, it was not unreasonable for VonCannon to conclude that he might go upon the plaintiffs\u2019 driveway for this purpose without incurring liability to an action for trespass; that is, to construe the presence of the driveway as indicating the plaintiffs had no objection to its use to the extent necessary for this purpose.\nConsidering the evidence in the record in the light most favorable to the plaintiffs, we conclude that it fails to show a trespass upon their property by VonCannon and, therefore, is not sufficient to support a verdict and judgment against him. The plaintiffs\u2019 cause of action against Kirk\u2019s Taxi Service, Inc., is based entirely upon the doctrine of respondeat superior. Since VonCannon is not liable, his employer is not, even if the record be deemed sufficient to show that the master-servant relation existed with reference to this occurrence.\nThere was no error in the granting of the motion for a directed verdict as to each defendant. We, therefore, do not reach the questions argued by the plaintiffs concerning the admissibility of evidence as to damages.\nNo error.", "type": "majority", "author": "LAKE, Justice." } ], "attorneys": [ "Burke & Donaldson by Arthur J. Donaldson for plaintiffs.", "Kluttz & Hamlin by Lewis P. Hamlin, Jr., and Richard R. Reamer for defendants." ], "corrections": "", "head_matter": "THOMAS SMITH and JEANNIE RUTH HEGGINS v. GORDON T. VonCANNON and KIRK\u2019S TAXI SERVICE, INC.\nNo. 64\n(Filed 12 July 1973)\n1. Eules of Civil Procedure \u00a7 50\u2014 motion for directed verdict \u2014 review by court on appeal\nThe question for a reviewing court on an appeal from a judgment on a directed verdict in favor of the defendant is whether the evidence in the record, considered in the light most favorable to the plaintiffs and giving them the benefit of every reasonable inference therefrom, would have been sufficient to support a verdict in their favor.\n2. Negligence \u00a7 59; Trespass \u00a7 7 \u2014 \u25a0 automobile striking house\u2014 showing of wrongful act or negligence necessary for recovery of damages\nEvidence that the defendant drove an automobile off the public highway and across private property so that it struck a building is not sufficient to entitle the innocent owner of the building to recover damages; rather, there must be proof of some wrongful \u00e1ct or neglect of the defendant which was the \u2019 proximate cause of the injury.\n3. Negligence \u00a7 59; Trespass \u00a7 1\u2014 trespasser \u2014 licensee \u2014 definitions\nA trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor\u2019s consent or otherwise, while a licensee is a person who is privileged to enter or remain on land only by virtue of the possessor\u2019s consent.\n4. Trespass \u00a7 6\u2014 acts of landowner \u2014 local customs \u2014 relevancy on issue of consent\nConsent to enter land in the possession of another may be implied, and acts of the possessor as well as customs in the community should be considered in determining whether, there has been consent to enter.\n5. Trespass \u00a7 7\u2014 construction of driveway \u2014 implied consent to enter \u25a0\nThe construction of a driveway or walkway leading to the entrance of a residence may, in the absence of notice to the contrary, be reasonably construed, not only by acquaintances of the landowner but also by strangers, as an expression of the landowner\u2019s consent to their entry thereon for the purpose of approaching and entering the house on any lawful mission.\n6. Trespass \u00a7 7\u2014 entry into driveway by taxicab \u2014 no trespass \u2014 taxi striking house during assault by passenger \u2014 directed verdict for taxi driver proper\nWhere the evidence tended to show that defendant eabdriver entered plaintiff\u2019s driveway either to discharge his passenger or to turn around, the passenger assaulted defendant and, in the process of defending himself, defendant allowed his vehicle to roll into plaintiff\u2019s house causing damage, the trial court properly directed verdict for defendant in plaintiff\u2019s action to recover for damage to the house since the evidence was insufficient to show a trespass upon plaintiff\u2019s property by defendant.\nAppeal by plaintiffs from the decision of the Court of Appeals, reported in 17 N.C. App. 438, 194 S.E. 2d 362, rehearing allowed with no change in result, Brock, J., dissenting. The Court of Appeals found no error in the allowance by Warren, D. J., in the District Court of Rowan County, of the defendants\u2019 motions for a directed verdict at the close of the plaintiffs\u2019 evidence.\nOn 27 April 1971, the plaintiffs were the owners of a house and lot in the City of Salisbury, known as 206 York Road, and the plaintiff Heggins was in possession of it. The plaintiffs sue for damage to the house caused by a taxicab, owned by Kirk\u2019s Taxi Service, Inc., and driven by VonCannon, running into it. They allege that VonCannon was an employee of the taxi company and was acting in the course of his employment. They further allege that his entry on their land was intentional and unauthorized and, therefore, constituted a trespass. The defendants allege that the damage to the property was proximately caused by the criminal act of a passenger in the taxicab, who directed VonCannon to drive to the house arid struck him in an attempt to rob him, in the course of which attempt the taxicab moved forward and struck the house.\nAt the close of the plaintiffs\u2019 evidence, the defendants moved for a directed verdict, pursuant to Rule 50 of the Rules of Civil Procedure, upon the ground that the evidence of the plaintiffs failed to prove a claim upon which relief can be granted. It appearing to the district judge that the . evidence failed to show an unlawful trespass by either of the defendants, or other facts upon which relief could be granted, and that the plaintiffs had failed to show that VonCannon was the agent of Kirk\u2019s Taxi Service, Inc., the court granted the motion. Judgment for the defendants was entered accordingly.\nThe plaintiff Heggins testified that on 27 April 1971 she returned to her home about 9:30 p.m. and found that, in her absence, the house had been severely damaged. The house is in a remote area and is the last house on York Eoad, which dead ends just beyond the driveway leading to the house of the plaintiffs. She was expecting no caller that evening. Just past her driveway there is \u201ca turn around area\u201d at the end of the road, some 50 to 100 feet past the driveway.\nLieutenant George Peeler of the Salisbury Police Department testified that in response to a radio dispatch from police headquarters, about 9:00 p.m., he went to Kirk\u2019s taxi stand where he saw the defendant VonCannon in the outer office. VonCannon told Lieutenant Peeler that he had been in his cab at a cab stand when a Negro man got into it, saying he wanted to go \u201cout on Bringle Ferry Eoad.\u201d VonCannon drove out on the Bringle Ferry Eoad and his passenger then directed him to go \u201cdown York Eoad,\u201d which VonCannon did. When he got to the end of York Eoad, VonCannon \u201cpulled in to the right\u201d and stopped. Thereupon, his passenger hit him two or three times. VonCannon turned around to grab his assailant, but the assailant jumped from the cab and fled. VonCannon told Lieutenant Peeler that he, VonCannon, then drove back to the cab stand and reported what had happened and \u201cthey\u201d called the police. It is a mile or more from York Eoad to Kirk\u2019s taxi stand. Von-Cannon did not use the radio in his cab to report the occurrence. Lieutenant Peeler observed blood on VonCannon and on the front seat of the cab. He also observed the microphone receiver of the cab radio down on the floor board.\nThe plaintiffs\u2019 house is below the level of the road, so that the driveway runs down hill from the road to the house. The alleged assailant of VonCannon has never been arrested. Von-Cannon told Lieutenant Peeler that he, VonCannon, never lost consciousness after being struck. At the time of the first interview, VonCannon \u201cforgot\u201d to tell Lieutenant Peeler that the taxicab had hit the house. When subsequently interviewed again in the emergency room of the hospital, VonCannon told Lieutenant Peeler that his assailant jumped out of the car when VonCannon reached around to grab him, and when VonCannon turned back around, the car \u201cjust rolled into the house.\u201d\nVonCannon\u2019s answers to interrogatories were read to the jury. Therein, he described his assailant and stated that he was stopped four to six feet from the house when he was struck. It is 15.5 feet along the driveway from the property line to the wall of the house.\nBurke & Donaldson by Arthur J. Donaldson for plaintiffs.\nKluttz & Hamlin by Lewis P. Hamlin, Jr., and Richard R. Reamer for defendants." }, "file_name": "0656-01", "first_page_order": 684, "last_page_order": 692 }