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Michael v. Bailey, 231 N.C. 404, 57 S.E.2d 372

Michael v. Bailey, 231 N.C. 404, 57 S.E.2d 372

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  • …and this case is about negligence.
  • N. L. Bailey, administrator of the estate of Nathan J. Bailey, deceased,
  • Brought action against Fred R. Michael and others to recover for death of deceased as result of intersectional collision of automobiles.
  • The Superior Court of Davidson County rendered a judgment for the plaintiff, and the defendants appealed.
  • Around 9:00 a.m. on December 6, 1947, Nathan J. Bailey was driving with his sister as passenger in Lexington, North Carolina.
  • Mr. Bailey was travelling in a North Easterly direction on Robbins street. Robert Athay, an employee of the defendant was travelling East on West 7th Avenue.
  • According to the evidence, the driver of a car approaching Robbins Street from the west, on West 7th Avenue, would have to be within 50 feet of the intersection to see a distance of 30 feet to the south down Robbins Street. 
  • Both parties contend that they were traveling at 15 to 20 miles per hour and that the other vehicle was travelling between 40 to 50 miles per hour. Robert Athay testified that right before he reached the intersection he heard the decedent’s vehicle approaching. He applied the brakes, but Mr. Athay stated that he could not stop the vehicle any sooner than he did and that he approached the intersection at a speed that prevented him from not going into the intersection.
  • The collision between the two vehicles was powerful enough to break the steel reinforced hinge pillar post on the decedent’s vehicle, and knock the car forward until it turned over and came to a rest on its side 98 feet down Robbins Street.
  • (1) Whether the Superior Court erred in refusing to sustain the Defendant’s motion for a judgment of nonsuit because of the Plaintiff’s intestate’s contributory negligence?  (2) Was the Plaintiff’s complaint defective?
  • (1) Powers v. Sternberg, 213 N.C. 41,195 S.E. 88 (1947)(2) Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539 (1947) (3) Coylar v. Atlantic States Motor Lines, 56 S.E. 2d 647 (1949)
  • Citing Powers v. Sternberg, the Defendants claim that the Court made an error in refusing to sustain their motion for judgment as of nonsuit on the ground that Mr. Nathan J. Bailey, the deceased driver, was guilty of contributory negligence as a matter of law. In other words, the Defendants wanted the Court to render a judgment against the Plaintiff because the Plaintiff had not and could not prove his case in court, indicating that the Defendants could not lose their case.Black’s Law Dictionary 954 (5th ed. 1979). Motion for Dismissal. (2012). Law.com. ALM Publishing. Retrieved November 27, 2012, from: http://dictionary.law.com/Default.aspx?selected=1289. In other words, the Defendants wanted the Court to render a judgment against the Plaintiff because the Plaintiff had not and could not prove his case in court, indicating that the Defendants could not lose the case.
  • Williams v. Frederickson Motor Express Lines, and Dawson v. Seashore Transportation Co., state that the Defendants have the burden of proof in proving that the decedent was liable for contributory negligence, making the Defendant’s motion for judgment as of nonsuit impossible.
  • Also, Bundy v. Powell, and Williams v. Frederickson Motor Express Lines, indicate that a plea for judgment as of nonsuit on the ground of contributory negligence by the deceased driver cannot be granted if proof of the contributory negligence relies on all of or part of the testimony of the defense.
  • The testimony that the Defendants gave relied on the fact that Mr. Bailey failed to bring his car to a complete stop before entering the intersection, violating N.C.G.S. § 20-158 (2007), and this violation is negligence per se which granted the Defendants a motion for judgment as of nonsuit.
  • Nevertheless, though the Court agreed that the deceased driver failed to bring his vehicle to a complete stop before entering the intersection, Hill v. Lopez, held that such failure is not negligence per se or prima facie negligence but only evidence of such negligence which must be considered along with the rest of the evidence and circumstances,
  • and Dawson v. Seashore Transportation Co., N.C. 36, 51 S.E.2d 921 (1949) stated that in order for the Court to consider such a motion, the evidence regarding the deceased driver would have to so clearly establish contributory negligence that no other reasonable conclusion could be drawn from the evidence presented.
  • The Defendants also alleged orally that the Plaintiff failed to institute a complaint of the deceased driver’s death within one year of the driver’s death.
  • Though the complaint regarding Mr. Bailey’s death was not instituted within one year, Coylar v. Atlantic States Motor Lines, 56 S.E. 2d 647 (1949) held that the right to maintain an action for damages for wrongful death was created by statute and codified in N.C.G.S. § 28-173 (now repealed) and bringing an action of wrongful death is ordinarily accomplished via the summons and not the complaint, and it is not necessary to allege damages for the wrongful death in the complaint or in a complaint filed within one year of Mr. Bailey’s death.
  • The Superior Court was not in error for refusing to sustain the Defendant’s motion for a judgment of nonsuit due to Mr. Bailey’s alleged contributory negligence because the evidence the Defendants presented could not clearly establish Mr. Bailey’s contributory negligence,
  • and any such evidence the Defendants relied on to support their claim of negligence per se or prima facie negligence barred the Defendants from a motion for a judgment of nonsuit.
  • Also, the action for damages by the Plaintiff was mentioned in the summons which was filed within one year of Mr. Bailey’s death. The complaint does not have to allege damages for Mr. Bailey’s death; therefore, the complaint is not defective.

Transcript

  • 1. Brought action against Fred R. Michael and others to recover fordeath of the deceased asa result of intersectionalcollision of automobiles.
  • 2. Robert Athay would haveto be within 50 feet of theintersection to see adistance of 30 feet downRobbins street.
  • 3. steel reinforcedhinge pillar post
  • 4. ISSUE Whether the Superior Court erred in refusing to sustainthe Defendant’s motion for a judgment of nonsuit because of the Plaintiff’s intestate’s contributory negligence?Was the Plaintiff’s complaint defective?
  • 5. Powers v. Sternberg, 213 N.C. 41,195 S.E. 88 (1947) Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539 (1947)Coylar v. Atlantic States Motor Lines, 56 S.E. 2d 647 (1949)
  • 6. Citing Powers v. Sternberg, 213 N.C. 41,195 S.E. 88(1947), the Defendants claim that the Court made an errorin refusing to sustain their motion for judgment as ofnonsuit on the ground that Mr. Nathan J. Bailey, thedeceased driver, was guilty of contributory negligence as amatter of law.
  • 7. and Dawson v. Seashore Transportation Co., N.C. 36, 51S.E.2d 921 (1949): in order for the Court to consider such amotion, the evidence regarding the deceased driver wouldhave to so clearly establish contributory negligence that noother reasonable conclusion could be drawn from theevidence presented.
  • 8. and any such evidence the Defendants relied on tosupport their claim of negligence per se or prima facienegligence barred the Defendants from a motion for ajudgment of nonsuit.
  • 9. Also, the action for damages by thePlaintiff was mentioned in thesummons which was filed within oneyear of Mr. Bailey’s death. Thecomplaint does not have to allegedamages for Mr. Bailey’s death;therefore, the complaint is notdefective.
  • 10. Thank you.
  • 11. References page 1 of 21. No image.2. Clip art3. Clip Art4. Welcome to Davidson County - District 22B… [JPG]. Retrieved December 6, 2012 from: http://www.nccourts.org/county/davidson/5. Gavel Time... [JPG]. Retrieved December 6, 2012 from: http://www.lewpblog.com/2012/09/08/nfl-now-finding- laughter/gavel-time/6. December 1947 Calendar. Holidays in… [PNG]. Retrieved December 9, 2012 from: http://www.rocketcalendar.com/calendar/1947-127. Robbins Street and west 7th avenue… [PNG]. Retrieved December 9, 2012 from: http://maps.google.com/maps?hl=en&bav=on.2,or.r_gc.r_pw.r_qf.&bpcl=39650382&biw=1280&bih=861&q=robbins+stre et+and+west+7th+avenue+lexington+north+carolina&um=1&ie=UTF- 8&hq=&hnear=0x885399cd75a5eb5d:0xacbe88a49adbc73b,W+7th+Ave+%26+Robbins+St,+Lexington,+NC+27292&gl=us& sa=X&ei=d7LEUNa7E4me8QTxoYCgBA&sqi=2&ved=0CCsQ8gEwAA8. Robbins Street and west 7th avenue… [PNG]. Retrieved December 9, 2012 from: http://maps.google.com/maps?hl=en&bav=on.2,or.r_gc.r_pw.r_qf.&bpcl=39650382&biw=1280&bih=861&q=robbins+stre et+and+west+7th+avenue+lexington+north+carolina&um=1&ie=UTF- 8&hq=&hnear=0x885399cd75a5eb5d:0xacbe88a49adbc73b,W+7th+Ave+%26+Robbins+St,+Lexington,+NC+27292&gl=us& sa=X&ei=d7LEUNa7E4me8QTxoYCgBA&sqi=2&ved=0CCsQ8gEwAA9. Robbins Street and west 7th avenue… [PNG]. Retrieved December 9, 2012 from: http://maps.google.com/maps?hl=en&bav=on.2,or.r_gc.r_pw.r_qf.&bpcl=39650382&biw=1280&bih=861&q=robbins+stre et+and+west+7th+avenue+lexington+north+carolina&um=1&ie=UTF- 8&hq=&hnear=0x885399cd75a5eb5d:0xacbe88a49adbc73b,W+7th+Ave+%26+Robbins+St,+Lexington,+NC+27292&gl=us& sa=X&ei=d7LEUNa7E4me8QTxoYCgBA&sqi=2&ved=0CCsQ8gEwAA10. Steel reinforced hinge pillar post… [PNG]. Retrieved December 9, 2012 from: http://www.allpar.com/history/plymouth/1937.html11. No image.12. No image.13. Gold magnifying glass… [PNG]. Retrieved December 7, 2012 from: http://www.officialpsds.com/Gold-Magnifying-Glass- PSD55804.html
  • 12. References page 2 of 214. No image.15. Burden of proof… [PNG]. Retrieved December 7, 2012 from: http://www.flprobatelitigation.com/2012/01/articles/new-probate-cases/creditors-claims/2d-dca-who-has-the- burden-of-proving-whether-or-not-youre-a-reasonably-ascertainable-creditor-of-the-estate/16. 20090128_2trial0129_1.jpg… [JPG]. Retrieved December 8, 2012 from: http://minnesota.publicradio.org/display/web/2009/01/28/election_officials_testimony_to_continue_in_recount_tr ial/17. KL_001938_cp.jpg.jpg…[JPG]. Retrieved December 6, 2012 from: http://dome.mit.edu/handle/1721.3/35533?show=full18. Old_NC_Supreme_Court… [JPG]. Retrieved December 7, 2012 from: http://www.lib.unc.edu/blogs/shc/index.php/2008/08/27/new-book-examines-the-life-of-chief-justice-susie-sharp- 1907-1996-biographer-anna-hayes-to-speak-at-wilson-library-9112008/19. No image.20. Screen Shot 2012-05-02 at 11.59.40 AM.png…[PNG]. Retrieved December 9, 2012 from: http://www.foodpoisonjournal.com/foodborne-illness-outbreaks/salmonella-lawsuit-filed-in-north-carolina/21. No image.22. Conclusion-300x161.jpg… [JPG]. Retrieved December 9, 2012 from: http://www.amreshkumar.com/2011/05/19/conclusion-less/23. No image.24. No image.25. No image.26. No image.