*1 IN THE SUPREME COURT. Dickey v. R. R. Criminal tried an indictment the defendant prosecution upon charging and another and larceny receiving.
Verdict: Guilty.
Judgment: Six months the roads. Defendant errors. appeals, assigning Brummitt and Attorney-General Attorney-General Assistant Nash for the State.
Shaw & J ones defendant. C. J. The bill of and charges indictment the defendant
Stacy,
another
with the
“334
leaf
larceny
pounds of
value
tobacco,
$58.97,
goods and chattels of L. B. Jenkins
and with
Company,”
receiving
knowing
same
it to have
feloniously
been
stolen or taken
violation of C.
4250. There is
S.,
no evidence
the record tending
show
if
that the
stolen
tobacco,
larceny
or received with
its
knowledge of
by another, was the
of L. B.
property
Jenkins
Had
Company. S. v.
fock,
delicti,
Reversed. LEWIS DICKEY ATLANTIC v. COAST LINE RAILROAD COMPANY.
(Filed March, 1929.) — — Operation Crossings Negligence—Proxi- Railroads Accidents at — mate Canse —Ordinances. against Where in an there is evidence action a railroad tend- ing freight blocking to show train a street of town in viola- forbidding tion of an to do so for more than minutes at ten time, and that the was a in a car driven owner thereof, obstructing Held, and that the car collided with the train: negligence per se, proxi- violation of the ordinance is and the jury determination, be mate should submitted to the for its as of defendant’s motion nonsuit be denied. should Western R. distinguished. N. cited Contributory Negligence Negligence Imputed 2. Same — —Automobiles— — Guests —Railroads. driving The of the owner of its automobile the time train collision with a railroad the street of a town in violation W TEEM, SPEING- 0.]
Dickey v. *2 ordinarily imputed riding automobile of to one in the an ordinance guest subject invitee, principle as or hut this to modification a mere tending guest were en- to that the owner the under evidence show and joint enterprise. Pusey R., gaged 181 N. in v. R. a Contributory Negligence Proximate S. Cause. Same — —Sole driving plaintiff riding guest as or mere of The the invitee the owner freight with train at the a collision defendant’s automobile time of may standing a town re- the in of ordinance across street not damages against the the railroad when the of cover automobile is the sole of the in suit. of the driver Adams, J., dissenting opinion. in concurs
Appeal J., Barnhill, September Term, by plaintiff 1928, MARTIN. Civil action to recover for an caused damages alleged negligent injury which, a a between an in as plaintiff riding collision automobile was the defendant’s train across a street in the town
guest, standing and in violation of an of said town. Parmelee ordinance tends to of 10 night 1924, plain- The evidence show that on the March, Frank on an automobile tiff, guest, an invited started trip one owner and driver of the from Eobersonville to Greenville Donnell, car, to At 20 25 miles running per attend a show. while about or Parmelee, to which hour, belonging defendant, Donnell ran into train the freight injured. was across the and the street, plaintiff severely The had no control or over the but was authority automobile, mere or gratuitous riding invited therein. passenger any for
An of the town of Parmelee it unlawful making in train of the any crossings or to stand on or block street engine town than in time, ten minutes at a offered evidence. longer in crossing
J. who had his automobile at the L. Gurganus, stopped been there for the train testified: had waiting pass, to “We question, know not or ten the car struck. I do minutes when approximately eight but there, how got the train had been across the before we long sat there cold. raining there when we It was and We got there. light approached ten minutes and a approximately eight the car or heard heard slam. As we the train from the we opposite direction out.” went lights slam, was entered At close of nonsuit plaintiff’s evidence, judgment assigning defendant, plaintiff appeals, motion of from which error. & plaintiff. B. L. and Biggs Broughton McMillan Dunning,
A. B. & Bodman and McLean W. Stubbs Harry for defendant. 728 IN THE SUPREME COURT.
Dickey v. stating after the case: Under the announced principles Stacy, Co., White v. Realty C., 536, Earwood v. R. 180, E., Taylor v. Lumber C.,N. (on the we think proximate cause), the case should have been submitted to the jury.
The conclusion is entirely and the permissible inferable, fact readily viewing evidence its most favorable light for the plaintiff, the defendant’s train at the time of the collision was the street in violation of the town ordinance of Parmelee which makes it unlawful train any engine stand or block of the crossings street in said town than longer ten minutes at a time.
We held in have a number of cases that it is negligence on the part ,of of defendant to fail to observe a positive law. *3 safety requirement Hill, Stewart, Albritton v. 190 N. C., 130 429, E., 5; S. v. Taylor 172 N. 203, 90 S. 134. E., And where a failure of this kind is admitted or established, is' ordinarily question jury determine whether such is negligence the proximate cause of plaintiff’s injury. Thomas, Stultz v. 182 N. 109 C., 470, E., S. 361. But, if the course, of the negligence driver and his fault alone were the sole proximate cause of the as injury, from a distinguished cause proximate or one the proximate then there causes, could be no rail recovery against the R., road. Earwood v. R. supra. R., v. R. 194
Weston N. 139 C., 210, S. is distinguishable, for there suit was by the owner and driver of the ear, while here the a mere plaintiff, invited with no guest or control authority over the car, and not its owner, the action. brings Ordinarily, negligence of the under driver, such is not circumstances, imputable to the or pas- R., senger. R. Williams v. 187 N. 121 C., 348, S. 608 E., (concurring R., opinion); R. Bagwell v. 167 N. C., 83 611, E., S. 814. But this be principle may subject to if modification it should appear that of the car occupants engaged were in a joint enterprise. Pusey R. C.,N. 137, 452. E., Reversed. I in
CoNNOs, dissenting: concur the opinion of the Court that on the trial of this action in the Superior Court there was evidence tending to show a by violation defendant of an ordinance of the town of Par- melee.
This as follows: “It is declared a hereby nuisance for a train or or engine any part thereof of a to stand on train, across, or or block of the any street or sidewalk crossings crossings the town of Parmelee, North than Carolina, longer ten minutes at a time, under not to exceed penalty five dollars for each and every offense.” TEEM, SPEING N. O.]
Dickey v. tbe shall find if tbe jury our decisions by It is well settled negli sucb violation ordinance, tbis that defendant violated evidence no evidence there was to bold tbat I tbe court understand se. gence per was negligent find tbat defendant tbe could jury from which Com Highway ordinance of tbe In I concur. Tbe tbis respect. other in tbe left or other obstruction tbat a vehicle requiring mission applicable is not lights, protected by proper at shall be roadway night aon public a railroad standing by to a car left ordi in its of tbe consisting Defendant’s night. negligence, unless sucb however, actionable, Parmelee, nance of tbe town of resulted of tbe collision which tbe cause proximate negligence E., C., 125, Ledbetter v. injuries. English, plaintiff's defend tbat where ordinarily our decisions by It is also well settled as to whether tbe evidence, is established tbe ant’s negligence jury. of tbe is for tbe injury, proximate was tbe negligence sucb There must tbis is tbe case. however, always I tbat understand, do not may at least from which it jury may find, from which tbe be evidence tbe of tbe defendant and negligence relation between tbe infer causal sucb is a ques Whether or not there is evidence to tbe plaintiff. there Notwithstanding tbe court. tion of law to be determined if is no from which there evidence negligence, of defendant’s evidence cause of tbe proximate find tbat sucb tbe jury may S., of nonsuit under C. judgment defendant’s motion injury, 595; v. Tea should be allowed. Peters *4 C., 346, 137 E., Corp., Gillis v. Transit is it In Leathers v. Tobacco tbe regarding any dispute “While it is true tbat if there be tbis Court: tbe conceded or, if, upon injury sustained, manner in which tbe to (as tbe fairly drawn, than one inference bemay more facts, cause of plaintiff’s was the negligence proximate whether defendant’s tbat settled it is well jury, yet equally be left to tbe should injury) not sucb facts are capable as to tbe facts, where there no dispute to judge is tbe of tbe inference, duty of more than one it supporting tbe tbe proxi a matter of whether jury, law, instruct tbe mate result of tbe of defendant.” negligence tbe of tbe
In I am unable to see bow violation case, tbe instant auto- between tbe causal relation to tbe collision ordinance bad car as a and defendant’s riding, guest, mobile in which for defendant negligence It was not crossing. which was on tbe standing after only became crossing; on tbe standing to leave its car of tbe ordi- minutes, than ten tbe car bad stood there more concerned, far as defendant was nance. Tbe collision so occurred, IN THE SUPBEME COUNT. Company. Bank v. Peanut because its car was standing on tbe This crossing. was not negligence. Tbe collision did not occur because tbe car bad been standing on tbe more tban ten if sucb was tbe fact. minutes, Tbe evident of tbe purpose ordinance was to tbe prohibit of street crossings by defendant, and thereby its interference prevent with tbe of flow traffic over said It was crossings. not tbe purpose tbe ordinance to protect travelers on tbe public streets from injuries resulting collisions engines or cars left on said crossings.
I think there was no error in tbe judgment tbe action dismissing upon defendant’s motion for nonsuit. I, therefore, dissent from tbe decision of tbe Court reversing judgment of tbe Superior Court.
Adams, J., concurs dissenting opinion. COMPANY, BANK OF WINDSOR CLARK and BIRD PEANUT Inc., COMPANY, & SONG Inc. (Filed March, 1929.) Bills Rights and Notes —Checks and Liabilities of Banks Drafts — Agency. Course of Collection — duly A bank that receives for collection drafts from authorized the agent money them, principal of another and the on advances which the benefit, paid presented receives the drawee bank in due course for collection and the drafts are not when to the the owing insolvency, to its deposit may against principal bank of maintain action the money advanced, fact, court, so when it is found as trial which exception taken, collecting agent no bank was drafts, ground principal drawee and not the owner of the on the that the agent. is liable for the default of his
Appeal by defendants from Midyette, August 1928, of Term, Beetle. Affirmed.
Action for tbe recovery of money paid to tbe by plaintiff agent defendants, drafts drawn by said agent Clark Peanut defendant, *5 Inc.; said Company, was used said money by for tbe agent purchase peanuts on account of defendants, partners. peanuts Tbe purchased agent and paid for with said money were to and shipped received by defendants.
Said drafts were duly presented to Clark Peanut Company, Inc., payment, United Commercial Bank, of Plymouth, 0., agent