No. 748.

82 S.E.2d 384 (1954)

240 N.C. 426

GANTT v. HOBSON et al.

Supreme Court of North Carolina.

June 4, 1954.

Attorney(s) appearing for the Case

Edwards, Sanders & Everett, Durham, for plaintiff-appellee.

Cooper, Long, Latham & Cooper, Barnie P. Jones, Burlington, for defendants-appellants.

WINBORNE, Justice.

The demurrer of the defendants, the appellants Hobson and Adkins, presents for decision the question as to whether or not the facts alleged in the complaint are sufficient to constitute a cause of action against them. For the purpose of considering such question, the truth of the allegations contained in the complaint is admitted, and "ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but the principle does not extend to admissions of conclusions or inferences of law", Stacy, C. J., in Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761, 763; Bumgardner v. Allison Fence Co., 236 N.C. 698, 74 S.E.2d 32; McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E.2d 36; also Stribbling v. Lamm, 239 N.C. 529, 80 S.E.2d 270, and cases cited.

Too, it is provided by statute, G.S. § 1-151, that in the construction of a pleading for the purpose of determining its effect its allegations shall be liberally construed with the view to substantial justice between the parties. And decisions of this Court interpreting and applying the provisions of this Statute require that every reasonable intendment must be in favor of the pleader. The pleading must be fatally defective before it will be rejected as insufficient. See Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; also Bumgardner v. Allison Fence Co., supra.

In the light of the provisions and principles of the statute, as so interpreted and applied, consideration of the facts alleged in the complaint in the instant case, leads this Court to conclude, as did the Judge on hearing below, that the allegations in respect to the defendants, Hobson and Adkins, are not so fatally defective, as a matter of law, as to require the sustaining of the demurrer on the ground upon which it is based. As was said in the Bumgardner case, supra, the factual situation may be fully developed upon the trial in Superior Court. Then the court may consider the case in the light of the evidence adduced by the respective parties. And such consideration will not be foreclosed or circumscribed by decision now made on the demurrer. See Montgomery v. Blades, 222 N.C. 463, at page 469, 23 S.E.2d 844; Lewis v. Shaver, 236 N.C. 510, 73 S.E.2d 320, 321, and cases cited.

In the Lewis case, supra, in opinion by Barnhill, J., now C. J., it is said that "A demurrer to a complaint, G.S. § 1-127, and a demurrer to the evidence, G.S. § 1-183, are different in purpose and result. One challenges the sufficiency of the pleadings, the other the sufficiency of the evidence", citing cases.

Nevertheless, it is appropriate to say that appellants in brief filed in this Court present two main topics for consideration: (1) That the facts alleged in the complaint fail to show that the death of plaintiff's intestate, Pierce Butler, resulted from negligence on the part of Hobson; and (2) that the complaint shows on its face that any negligence on the part of Hobson was insulated and rendered inoperative by the intervening negligence of Bentley.

As to the first, it may be noted that the complaint of plaintiff alleges that at the time and place of the collision here involved the defendants Hobson and Adkins were negligent in three aspects as set forth in paragraph 8, subsections (a), (b) and (c).

The first (a) charges that Hobson, acting for and in behalf of Adkins, drove the auto car truck at a time and in a manner violative of the provisions of G.S. § 20-156 (a). In this statute it is provided that "The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway". And in order to comply with this statute, the driver of such vehicle is required to look for vehicles approaching on such highway, and this "is required to be done at a time when this precaution may be effective", as expressed by Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 601, citing cases. See also Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, a case somewhat similar in factual situation to the one in hand.

However, the Garner case came up on appeal from judgment as of nonsuit entered at the close of all the evidence. The collision there involved was between an automobile owned and operated by defendant Pittman, in which plaintiff was riding, and an automobile owned and operated by defendant Sipe. The Sipe automobile was traveling east on a street, and in the line and lane of eastbound traffic thereon, and the Pittman car had just emerged from a private driveway located on the north side of the street and was proceeding across the street, turning to left, that is, east, to get into the line and lane of eastbound traffic. And while the factual situation there is not identical to that in present case, the Court discussed the statute and applied the pertinent principles of law. This may be done in instant case when the ultimate facts alleged are developed by evidence at the trial in Superior Court.

The second (b) charges that, after making the turn into the highway, Hobson drove the auto car truck at a speed not exceeding ten miles per hour under existing conditions in violation of G.S. § 20-141 (h). This statute provides that no person shall drive a motor vehicle at such slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law.

And the third (c) charges that Hobson operated the auto car truck on a public highway without having on, and at the rear of it, a red light plainly visible under normal atmospheric conditions from a distance of five hundred feet to the rear, and other lights and reflectors required by G.S. § 20-129(d).

These allegations (b) and (c) admit of proof in respect theretowhich when introduced, may be judged in the light of applicable principles of law.

This Court holds that the facts as alleged are not sufficiently definite to point to a single inference in respect to the contention of appellants that defendants Bentley and Broussard were negligent as alleged, and that such negligence insulated any negligence of which the defendants Hobson and Adkins may have been guilty.

This necessitates a trial in Superior Court where the facts may be developed by evidence within the framework of the pleading, and then the evidence considered in the light of applicable principles of law.

Hence the judgment below is



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