Watts v. Watts

113 S.E.2d 720 (1960)

252 N.C. 352

F. W. WATTS, Administrator of the Estate of Malcolm Watts, deceased, v. Frederick A. WATTS.

No. 385.

Supreme Court of North Carolina.

April 13, 1960.

*721 Harold R. Wilson, Winston-Salem, for plaintiff appellant.

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendant appellee.

DENNY, Justice.

The plaintiff assigns as error the ruling of the court below in sustaining the defendant's motion for judgment as of nonsuit.

The plaintiff alleged in his complaint that prior to 9 November 1958 "the *722 defendant had actual knowledge that the emergency brake on said Mercury automobile was not in a safe working and mechanical condition and that the said defendant had purchased parts with which to repair said emergency brake but had failed to do so." The evidence offered in this connection was to the effect that the week before the accident the hand brake cable on the Mercury broke; that the defendant secured a hand brake cable and installed it but did not drive the car thereafter to test it and find out whether or not the emergency brake would hold. It is alleged that plaintiff's deceased pulled up the emergency brake, as required by law, when he parked the car. Even so, no evidence was offered tending to show that the hand brake was properly set, or that it was defective and, therefore, ineffective when so set. There is evidence that before the car could be pulled back off the sidewalk where it came to rest after the accident, it had to be taken out of gear and the emergency brake "pushed down." Unfortunately, the mechanic who repaired the car after the accident and could have testified, no doubt, as to the mechanical condition of the emergency brake immediately after the accident, died a short time before the case was tried. Consequently, the plaintiff was deprived of the benefit of evidence in this respect.

In the case of Harward v. General Motors Corp., 235 N.C. 88, 68 S.E.2d 855, 858, this Court said: "Negligence is never presumed from the mere fact of an accident or injury. The plaintiff has the burden of establishing by appropriate proof not only negligence but that such negligence was the proximate cause of the injury complained of. The plaintiff must also establish by his evidence a causal relation between the alleged negligence and the injury upon which a recovery is sought. Evidence that merely takes the matter into the realm of conjecture is insufficient. Rountree v. Fountain, 203 N.C. 381, 166 S.E. 329; Lynch v. Carolina Telephone & Telegraph Co., 204 N.C. 252, 167 S.E. 847. * * *" Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Parker v. Wilson, 247 N.C. 47, 100 S.E.2d 258.

The plaintiff contends that the defendant by not informing plaintiff's intestate of the defective condition of the hand brake on the Mercury car, created the emergency that was brought about when the car started to roll downhill and that the plaintiff's intestate under those circumstances was not required to pursue the wisest course of conduct in connection with his efforts to reenter the car. Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251.

If, however, plaintiff's intestate brought about the emergency or contributed to its creation by failing to park the car in the manner required by law, the plaintiff may not avail himself of the benefits of the doctrine of sudden emergency. Brunson v. Gainey, 245 N.C. 152, 95 S.E.2d 514; Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710.

There is no allegation or proof to the effect that when plaintiff's intestate parked the car headed downhill on Vargrave Street that he turned the front wheels of the Mercury automobile towards the curb of the street, as required by G.S. § 20-163 and G.S. § 20-124(b). A violation of these statutes constitutes negligence per se, but such violation must be a proximate cause of the injury to be actionable. Arnett v. Yeago, 247 N.C. 356, 100 S.E.2d 855; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246. In other words, the fact that the Mercury automobile ran down the street for a considerable distance immediately after it was parked, permits the inference that plaintiff's intestate did not turn its front wheels to the curb of Vargrave Street, as required by the above statutes. Arnett v. Yeago, supra.

However, in our opinion, we do not reach the question of contributory negligence. There is substantial variance between some of the essential allegations *723 of the complaint with respect to negligence and the evidence offered in support of such allegations. Moreover, irrespective of any variance in the allegations and proof, we do not think the plaintiff's evidence is sufficient to carry the case to the jury and support a verdict based on actionable negligence. Webster v. Webster, 247 N.C. 588, 101 S.E.2d 325; Harward v. General Motors Corp., supra.

The judgment as of nonsuit will be upheld.

Affirmed.