Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-09-14
COURT DECISIONS.
8DlGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
vtRclNIAN-PILcT.
Notes OF Cases Recently Decided
Which Are Of Interest to
Our People.
WHEELER v. GIDEON.


Supreme Court of North Carolina
June s, 1900.
CASE IN WHICH A PARTY HELD
Il LIABLE FOR DRIVING OVER A
PEDESTRIAN CROSSING A
STREET.. THERE BEING NEGL1-
GENCE IN BOTH PARTIES.
The court says:
The plaintiff started to cross Tryon
street, in Charlotte, at crossing. A
vlolent storm OF wind and rain sudden
street Just before crossing, in the d.
rection from which the storm was com.
ing, and saw mo moving thing" He
placed his umbrella on that side to
While his view was thus INSTRUCTED
and when he had almost reached the
opposite sidewalk, the hoof of the de-
fendant's horse, which was being
driven up the street. going in the same
direction as the storm. shot forward
under the umbrella as he held 1t down.
striking him on the knee. and imme-
diately after the front wheel of the
buggy struck him. The jury in re-
spouse to the first issue, found that the
plaintiff was injured by the negli-
gence OF the defendant. and. in re-
Spouse to the second issue, that plain
tiff was guilty of contributory negli-
gence. This disposes Of much of the
al lTdt was submitted, ana
clearly justif1es the submission of the
third issue. to which defendant except
ted: Gould the defendant. by the ex-
ercfse of ordinary care. have avoided
the injury to the plaintiff. notwith-
standing the negligence of the plain
tin?" This was the crucial issue of
fact. and was peculiarly for the con-
sideration, of the jury. for we cannot
agree with the appellant that the court
could instruct the jury that on such
rf a N ne f0nt1 IL. 1ot. Nlx@ -t.<., a.
cause of injury was due to the plain
tiff. That Is the very fact which tho
jury, not the court, must determine.
The negligence may have been concur
rent, or the last negligence may have
been the plaintiffs, or. Notwithstanding
the negligence of the plaintiff, the de-
PENDANT could, with the exercise of or
binary care, have prevented his horse
striking, and his conveyance running
over the plaintiff. The jury. and the
mine the fact, for there was evidence
for their consideration. The PLAINTIFF
wns crossing. with his head tucked be-
hind his umbrella. This was negli
gence. The defendant was driving
rapidly-"ten miles an hour, or at top
of his speed, and with his oilcloth up
in front OF the buggy, and this was
negligence. He was driving in the
same direction with the storm, and was
in vehicle. and therefore could keep
n better lookout Then his horse and
vehicle could do damage to foot pas
senger (and did). while the foot pas
senger was not likely to run into him
and do damage. and the defendant
should have kept n lookout correspond
ingly careful to avoid injury. This is
not like High V. Railroad Co.. where
1t was not negligence for the engineer
to suppose that a woman, even though
wearing n poke bonnet, would hear ana
see the train. and get off the narrow
railroad track; but here the defendant
could not suppose that the plaintiff.
crossing street in a heavy storm.
with his head behind his umbrella,
would see or hear his buggy in time
to get out OF the way. He had no right
to act on that presumption. as the en-
gineer was justified in doing in Highs
case. The train had the superior right
of way. The defendant had not. The
jury under proper Instructions have
found that If the defendant himself.
driving negligently, had used ordinary
care. he could have seen the paintin
negligently crossing the street in IL
pelting storm, with his head hid be-
hind his umbrella. in time to avoid run.
ming over him. This was a pure ques-
ton Of fact and the court cannot re-
view It.