Whitson v. Frances

83 S.E.2d 879 (1954)

240 N.C. 733

Mrs. Madeline B. WHITSON, Administratrix of Monroe Whitson, v. Sherrill FRANCES, George Frances, and George Frances, Guardian ad litem for Sherrill Frances.

No. 237.

Supreme Court of North Carolina.

October 13, 1954.

*881 W. C. Berry, Bakersville, G. D. Bailey, and W. E. Anglin, Burnsville, for plaintiff appellant.

Harkins, Van Winkle, Walton & Buck, Asheville for defendant appellees.

BARNHILL, Chief Justice.

In paragraph 7 of his complaint plaintiff alleges various acts of negligence on the part of the operator of the pickup truck "causing said pickup truck to strike the plaintiff's intestate, Monroe Whitson, with crushing impact at a time when the said Monroe Whitson was lawfully walking upon his extreme left-hand side or shoulder of said highway going in a northerly direction."

The defendants in their answer deny all the allegations contained in said paragraph.

At the trial plaintiff tendered in evidence that part of paragraph 7 which is above quoted. On objection, this evidence was excluded. In this ruling there was no error.

Ex parte, self-serving declarations contained in a complaint are not admissible in evidence as proof of the facts alleged. It is the admissions in the answer which are available to and may be offered as evidence by the plaintiff as proof of the facts admitted.

Admissions of distinct and separate facts pertinent to the matters at issue contained in the answer may be offered in evidence as proof of the facts admitted without reference to the corresponding allegation in the complaint. When, however, the defendant makes an admission which is categorical in nature and, standing alone, is more or less meaningless, the plaintiff may offer such portion, and only such portion, of the corresponding allegation of the complaint as serves to explain or clarify the specific admission tendered in evidence, but nothing more.

This question is discussed in Winslow v. Jordan, 236 N.C. 166, 72 S.E.2d 228. Reference may be had to that decision and the authorities therein cited.

Statements made by the infant defendant after the collision relative to the condition of his headlight just prior to the mishap were admissible as against him. No doubt objection thereto was sustained because they were repetitious and the answer tended to place before the jury unverified hearsay, neighborhood rumors. In discussing the primary question presented, we will treat these statements as if they had been admitted.

Did plaintiff offer evidence of sufficient probative force, when such evidence is considered in the light most favorable to her, to entitle her to have her cause submitted to a jury? This is the decisive question presented.

Direct evidence of negligence is not required. It may be inferred from facts and attendant circumstances, and if the facts proved establish the more reasonable probability that the defendant was guilty of actionable negilgence, the case cannot be withdrawn from the jury, though the possibility of accident may arise on the evidence. Etheridge v. Etheridge, 222 N.C. 616, 24 S.E.2d 477.

When, in a case such as this, the plaintiff must rely on the physical facts and other evidence which is circumstantial in nature, he must establish attendant facts and circumstances which reasonably warrant the inference that the death of his intestate was proximately caused by the actionable negligence of the defendant. Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670, and cases cited; Mitchell v. Melts, 220 N.C. 793, 18 S.E.2d 406.

*882 The inferences contemplated by this rule are logical inferences reasonably sustained by the evidence when" considered in the light most favorable to the plaintiff. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Sowers v. Marley, supra. It cannot be made to rest on conjecture or surmise. It must be "a permissible conclusion drawn by reason from a premise established by proof." Sowers v. Marley, supra [235 N.C. 607, 70 S.E.2d 672].

Proof of a collision between a motor vehicle and a pedestrian on a public highway and the resulting death of the pedestrian is not sufficient to warrant an inference that the collision and death were proximately caused by the negligence of the motorist. Ray v. Post, 224 N.C. 665, 32 S.E.2d 168; Pack v. Auman, 220 N.C. 704, 18 S.E.2d 247; Mitchell v. Melts, supra; Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855.

When the evidence contained in this record is sifted to its essentials and weighed in the balance provided by these rules of law, we find we have just these bare facts established, prima facie, by the evidence. The infant defendant was operating a pickup truck on Highway 26 at night. At the time, his right headlight was not on. The decedent, a pedestrian, was on the same highway, headed in the opposite direction. The right front fender struck deceased, apparently throwing his body up between the fender and the hood from which it fell or was thrown down the steep embankment. The decedent received injuries which caused his death. The defendants knew the headlight was not in proper working condition. Everything else is left to pure speculation.

There is no evidence from which it may be inferred that the tire marks were made by the truck. If they were, then they indicate that the vehicle was traveling on the hard-surface portion of the road. No debris was found on the hard surface. Neither was any found on the shoulder. Nor were there any tire marks on the shoulder. Deceased had a tendollar bill and a one-dollar bill wadded up. Similar bills were found on the shoulder about an hour after the collision. Did they belong to the deceased? How did they get there? Had they been knocked about by the crowd that gathered before they were found? The record fails to answer.

The hand rails to the steps were spread out, and one of the uprights was broken. Were the hand rails struck by the automobile or the body of the deceased as it fell or was cast from the truck? There was no mark on the truck identified as having been made by or corresponding to any part of the hand rail. The blood and the location of the body would seem to indicate that it was the body and not the truck that came in contact with the steps.

Where was deceased when he was struck? Was he standing or walking? If defendant had been keeping a proper lookout and his truck had been equipped with proper headlights, could he have seen deceased in time to avoid the collision, or did deceased fail to yield the right of way or suddenly step in front of the oncoming vehicle?

Thus it is, the testimony does no more than engender speculation. Ray v. Post, supra. There is no evidence from which an inference may be drawn either one way or another. Consequently, the line of cases represented by Pack v. Auman, above cited, is controlling here.

The judgment entered in the court below is

Affirmed.