249 N.C. 287 | N.C. | 1958
The judgments of nonsuit were entered because of variances between the plaintiffs’ allegations of negligence and their proof. The complaints allege the defendants’ Carroll were negligent in that the driver slowed down for the intersection without warning or signals; and that Moore (the driver of the car in which plaintiffs’ intestates were riding) applied his brakes to keep from striking the Carroll car from the rear, skidded his car out of control, crossed to his left and into the travel lane of the Singleton truck, with the fatal result. The Carroll car did not come in contact either with the Moore car or the Singleton truck. Plaintiffs’ evidence placed the collision between the truck and the Moore car at a point 134 feet from and to the north of the intersection and the Carroll car at or near the intersection. The evidence, therefore, would seem to take the Carroll car out of the danger zone and, if the driver were negligent, proof was lacking that such negligence was one of the proximate causes of the accident.
The plaintiffs allege the defendant Singleton, the driver of Cox’s Chevrolet truck, was driving 40-45 miles per hour in a 35-mile zone; and that when Moore applied his brakes, his car skidded out of control across the center of the highway into, the path of the Singleton truck and in its travel lane; and that Singleton was negligent in that he could and should have observed the perilous position of the Moore car in time to have pulled his truck off the highway to his right and to have avoided the accident. On the other hand, the plaintiffs’ evidence tended to show that Moore skidded his car to his right and never at any time crossed in front of the Singleton truck or into its proper lane of travel, but that Singleton, in order to miss the Carroll car in the intersection, negligently crossed over to his left and into the Moore car, stopped, or nearly so, on its proper side of the highway.
Other variances between allegations and the proof appear in the record. However, enough is here recited to show necessity for the non-
