*1 N. I-Iorney. published article, we or in While do not think the either in its entirety plaintiff’s respect portions of the thereof attributed by defendant, may evidence to made statements be fairly interpreted charge wrongdoing alleged by way to the full extent inmoendo, arewe opinion charge it does conduct from which unfitness for a position secretary-treasurer such as of the Farm Bureau implied. “(1) be communication jury It is noted: The court determines whether a capable defamatory meaning. (2) communication, capable determines whether a of a de- famatory meaning, recipient.” was so understood its Restate- ment Torts, of the Law of Sec. plaintiff’s employment by the Farm Bureau seems to employment, have been an extra or incidental membered that her it must be re- principal occupation, secretary- that of manager ASC, treasurer and had office in which she many years, served for responsibilities involved different occupation, extent but of like kind. In such which was her livelihood, custody established means of the care and of records primary responsibility.
was a the words profession “Where used have such a relation to the occupation they directly injure tend to it, impair him in or to confidence in his character or ability, must Jur., great when from the nature of his business confidence necessarily reposed, they actionable, . . .” 33 Am. C.J.S., Libel and Slander Sec. Libel and Slander Sec. 32(b). Our conclusion is that offered evidence sufficient to jury. Hence, submission of her case to the involuntary nonsuit is reversed. Reversed. Higgins, J., dissenting: It seems political to me that back of this case is a contro- versy, public good and in such matters I think demands that freely. course, be discussed Of the discussion should be light,
honest. Viewed in this me occurs to that the words used go beyond do not proper political the bounds of debate and dis- are, therefore, cussion and not actionable. I vote to affirm.
TEDDY LEE BARNES v. WILLIAM ALEXANDER HORNEY.
(Filed January, 1958.) presumption There is no from the mere fact that an accident has occurred. IN THE SUPREME COURT.
BARNES HORNEY. V. *2 42k— Automobiles § tending pedestrian, Evidence to show that a who had without been days by nights, and for two of a narrow sat side dirt gravel sleep, lying parallel and road and went to that he and was with car, by and in between the ruts the road when run over defendant’s contributory is held to disclose negligence as a on the matter of law part pedestrian. 3. Automobiles 33—§ motorist, proper in the his a a exercise of to maintain
lookout, required travelers, including pedes- anticipate to other trians, required using not will he is to person lying prone highway. will be on the Negligence 4. Automobiles 45: § predicated original The of last clear not chance is defendant, failure,
negligence negligence but and after negligence other, injury, contributory and tunity, each avoid the canceled oppor- apply doctrine cannot unless defendant has sufficient ordinary care, appreciate exercise of to discover and in the injuring plaintiff’s perilous position to avoid him. in time 42n—§ parallel lying prone, the ruts of a Evidence that was shady road, with the that defendant automobile dirt on low beam a distance of and seen could have _ object which some and that did see defendant object trash, recognize as he box or didn’t mistook for an old body held insufficient injury, to show that too to avoid until late opportunity he discovered defendant had to avoid position, perilous and therefore should have discovered preclude apply nonsuit. chance not doctrine of last clear does Johnson, dissenting. J., Bobbitt, J.J., and concur
Parker in dissent. Appeal Term, S.J., May, McKeithen, by plaintiff from Randolph Superior Court. injuries to the personal Civil to recover for action negligence alleged defendant actionable have resulted rate excessive operation at an of his automobile lights, and careless speed, in a reckless and of manner. The defendant denied without pleaded con- By reply, tributory plaintiff. on plaintiff alleged the the last clear chance avoid the defendant had injury. soldier, at home on leave. Just before July 4, a narrow dirt he sat down the side of dark on Randolph County gravel He went to had and been road in nights. days drinking slept and had for two beer being an injuries. As a run over automobile. He was awakened permanent serious and suffered result N. of the de- introduced the adverse examination following: appeared a dirt road
fendant “There is which way my I ran over residence all the brother’s to where my lights No, just I did on I crossed Barnes. not cut bridge. before, Creek them I struck the Jackson I cut on when bright. I hill. I cut them dim. cut I didn’t them on When say lights. dim, my driving I mean the ... I lower division lights. parking cut did not ... As to far I from him how him, my I first . when saw I would five or feet . . from six bumper pair pants, shirt, army front ... he had on shoes. him, object. . . . As whether I it I had no idea saw saw I something. a man. Looked a box or like an like Looked somebody old box where didn’t had thrown out trash. ... *3 head, recognize body. My see a I didn’t car was lying straddled Mr. Barnes. Those two ruts and he was way . . . half between the two ruts. is a dirt road with gravel single speak car that hit on it. The lane two ruts I of were used for my pan. . . . The traffic. the oil him was many ... As to how . . . feet of vision I had I the curve as rounded facing at that location that Barnes was in the road particular place, I ... 20 or feet . . makes would 25 . road past brought my turn there. vehicle to a hurry. ... I went 25 feet him before I stop. making ... I was about SO as was no It awas crooked . . .” road point There was other evidence that run could over be seen for a distance of feet. There about 200 lights driver to automobile would enable the lying distance, any particular see a man in the at that road or at weeds, bushes, distance. There was evidence and trees grew both sides of the road and some of the branches extended trees over the road. The accident occurred about p. m. 8:30 plaintiff’s At the close of evidence the court entered involuntary nonsuit, appealed. from which the Ottway appellant. Burton, plaintiff, for McNeill Smith John Dortch. Smith, Moore, Smith, Schell Hunter. & By: Smith, defendant, appellee. McNeill for allegations speed J. The Higgins, sup- are not
ported was the with plaintiff argues evidence. lights dim, after dark with it is obvious from evidence, however, operating the defendant was his car speed per on low beam at a about 30 miles hour narrow, gravel crooked, dirt and on a road. The 498 IN THE [247.
Barnes v. proceeded evidence is to the effect that as the defendant perceived object this shaded dirt road he some in the road at feet; thought a distance of 20 or 25 that he it was trash box. lying parallel The evidence discloses the with and between ruts. Whether head or his feet approach direction of the defendant’s is not disclosed. If solely the case were made to turn on whether the defendant negligent, question might present Negli difficulty. gence occurred. presumed is not from the mere fact accident has 108, Bryan, 411; Fleming v. Lane 246 N.C. 97 S.E. 2d Twiggs, 666, 821; Creed, v. 244 N.C. 94 2d S.E. Shinault v. 244 217, Melts, 793, N.C. S.E. 92 2d Mitchell S.E. v. However, very 2d 406. fact the without days nights, attempted for two middle negligence to make his bed in the shaded, or on the side a crooked, dirt shows aas matter Trucking Co., of law. Holderfield N.C. pate should be on the lookout be too much to used S.E. 904. A driver of an automobile antici using that other travelers will be and he However, them. it would seem to him to' would be sleeping quarters. course, pedestrian right Of has the pedestrian to use the right to traveler, but a is a foot and the carry right go walk does not with it the to lie down and voluntarily places One who himself in a peril ordinary known safety. fails to exercise care for his own Bogen Bogen, *4 plaintiff, apparently The realizing danger placing the of his reliance on the issues of contributory negligence, judgment contends that the involuntary of nonsuit be re should theory versed to the the defendant had the last clear chance injury. Liability avoid the chance, under the last clear or dis peril, covered predicated, any original negli is not on gence defendant, the opportunity but injury to avoid discovering after perilous position in which another has placed himself. liability Defendant’s is based new act negligence arising after contributory negli gence have canceled Liability each other out of the case. new act arises opportunity, defendant has had sufficient ordinary care, in the exercise of appreciate to-discover and to plaintiff’s perilous position injuring in time to avoid him. Gar Maryland, renton v. 614, 596; 243 N.C. 91 S.E. 2d Wade v. Sausage Co., 150; Mfg. Mount Olive Co., R., R. 65 S.E. 2d v. Truck Holderfield ing Co., supra; Johnson v. Administratrix, Morris’ (Ky.) 282 S.W. TERM, N. C.] Barnes evidence in this case is insufficient show The injury discovered, opportunity after he
had the avoid discovered, plaintiff’s perilous position. The should entered in the court below at the close of of nonsuit is Affirmed. J., dissenting. There is no evidence here that Johnson, boy consciously up paratrooper. bedded in road. He was a home, country Asheboro, He furlough at out in on a weekend Sunday, July Friday night which included 4th. he was guard got camp, sleep. Saturday night at he was bus,
en sleep. Sunday route home on the and did not afternoon countryside before Hunt. rode around the with his friend vicinity Just in before dark home girl of Hunt’s friend —whom he later married. Hunt wanted to drop message. her home and deliver wishing go mission, put with his friend on this out side yards girl’s of picked up home, the road a few hundred from the to be a little later Hunt. There each was a ditch on side Beyond of the road. each ditch was a bank. The sat down on a rock on the bank east side the road. He facing There, with his in feet the side ditch. ac- cording evidence, to all the he went to A few minutes by being later he was awakened run middle of the over road the defendant’s automobile. points unerringly line This of evidence to the inference that boy simply place moved in his safety be- yond place danger to the the ditch in the road. It is matter knowledge people of common that some sometimes walk and asleep wholly move around and Act while of their unconscious Macbeth, V, movements. See Scene majority opinion boy states that drinking had been so, any but it beer. is doubtful whether of the evidence justifies with evidence most drinking anything the inference that beer had to do causing boy asleep the road. The clearly shows that he was in nowise intoxicated. The against evidence discloses in this companion that he and his Hunt drank some beer earlier that day, none or six within five hours of injury. the time of the *5 plaintiff the “must Since have done ought that he which done, or ought not as a conscious p. 671) matter of have omitted that which he done, to have being,’’ (italics added) (38 Jur., Am. Negligence, contributorily been order have negligent as a law, it doubted justifies that this record negligence. charging him such with THE IN Hornby.
Baknes conceding may, and that the But be this as chargeable being con- of the road was with middle tributory negligence, me it a clear-cut case for the it seems to peril application of the last clear chance or discovered doctrine. Sausage Co., In Wade N.C. way: Ervin, J., “The the facts in that case this states salient disabling subject dizzy spells character. 'of a infirmity, Despite he undertook to walk eastward portion four main-traveled sometime before doing, morning July, so o’clock of 24 1952. While dizzy, consciousness, fell, to- rest athwart became lost and came legs projecting pavement into the center of the the southern with his feet and Shortly Hicks lane. thereafter traffic west, driving employer’s came east- scene from the along speed motor truck traffic lane at a bound southern forty-five equipped about miles hour. truck was burning headlights prostrate helpless and which fell body plainly and rendered it to Hicks when visible charge away. Although the vehicle in his was 225 feet he could throughout intervening have seen the 225 feet and striking by stopping could have driving drove the vehicle avoided truck or it onto southern shoulder Hicks straight speed ahead at unabated southern traffic lane and ran over the ankles and inflicting painful permanent injuries upon Held, and him.” properly jury case was chance to the under the submitted last clear doctrine, and the and verdict favor of upheld. Quoting opinion by Ervin, further J.: “Where injured pedestrian guilty contributory negli- who has been gence peril invokes the clear chance last or discovered against injured driver of motor vehicle which struck and him, (1) he must establish these four elements: That pedestrian negligently placed which he could not peril himself in a from escape care; the exercise of reasonable knew, (2) that the motorist or exercise reasonable care discovered, pedestrian’s perilous position could have and his incapacity suffered escape endangered pedestrian from it before the hands; injury (3) at his motorist had the endangered pedestrian and means to avoid to the time by discovered, the exercise of reasonable care after he discovered, pedestrian’s perilous position should it; incapacity escape (4) the motorist negligently failed to use the available time and means to avoid endangered pedestrian, injury to the and for that reason struck injured (Citing authorities) him.” The evidence on which *6 N. V. HORNEY.
BARNES all four plaintiff case relies satisfies in the instant foregoing elements. sight the road clear, distance unobstructed Here the lying placed the witnesses from where roads, Carter, supervisor a from 200 to A. at 200 to 300 feet. W. sight 250 feet.” distance was testified: “I’d Moore, highway patrolman, testified: a “With C. O. say you yards.” dis- vision, could see would the road the sides of or bushes closes no woods approached vision as the defendant’s interfered with photo- lying, indicates and the and the evidence high enough overhanging not graphs to have branches were show the map surveyor’s profile vision. interfered with his point 203 feet below where that from shows lying, looking proached, ap- which the defendant the direction from slightly straight practically but was road was gradually upgrade downgrade and then 90.42 first remaining point 203-foot The lowest in this 112.40 feet. for the imaginary only about six feet below of the road is section high point end of the straight projected at each defendant between line why reason There is no valid section. headlights proper care and use exercise of reasonable should not have seen during before the last 200 feet reaching him. “Every upon a provides: vehicle 20-129(a) G.S. during period from a half hour within this State any sunrise, time when and at other a half hour before sunset to there is not sufficient person any clearly light discernible to render ahead, feet of two hundred at distance lamps lighted and rear as in this equipped front shall section respectively required. . .” . lamps provides: “The head of motor ve- (a). 20-131 G.S. that, adjusted constructed, arranged, be so hicles shall provided mentioned in Sec. except . . will at all times . atmospheric and on a level 20-129, conditions normal and under clearly driving light render dis- road, produce cernible sufficient feet ahead. . . .” person two hundred lights on dim—low beam. with his The defendant was why have been on should not no reason There was negligence. Seymour, bright Pierce v. N.C. This was beam. 42, 21 keeping not Thus, the defendant was manifest it seems prudent operation are requirements “The a not lookout. pre- necessarily either ‘looks’ satisfied when duty during operation It ceding of his car. merely keep look but to a motor vehicle driver of IN THE McCoury. Jackson travel; outlook in the direction of and he is held to the *7 seeing ought Bain, what he to have seen.” Wall v. general operator “It is a rule of that law of a motor ordinary care, is, degree
vehicle must exercise
that
that
of care
ordinarily prudent person
which an
would exercise under
duty
similar circumstances. And in the exercise of such
it is
operator
incumbent
under
keep
of motor vehicle to
same
control,
keep
reasonably
lookout,
careful
so as
persons
to avoid collision
highway.
and vehicles
requires
operator
This
also
reasonably
must be
vigilant,
of
and that he
expect
presence
must
Co.,
others.” Adams v. Service
SAMPSON JACKSON ZELZAH McCOURY
(Filed January, 1958.) Appeal 49— Error § In purview an action within the Act, Small Claims party aptly jury trial, neither demands findings of fact made presiding judge have the jury force and effect of a verdict and are binding appeal supported by if competent evidence. stipulation parties A stop sign there awas erected the east side of a street before its intersection with another street sign sufficient to raise the inference that pursuant such was erected competent authority. 20-158(a). G.S. 3. Same— The failure of a driver a servient stop street or stop sign entering obedience to a before an intersection with a dominant contributory street or is not
per se, only evidence thereof to be considered with other facts appropriate in the case issue.