The opinion of the court was delivered by: Legge, Justice.
Action for alleged wrongful death of plaintiff's intestate who, walking on a highway about 1:30 a. m. on February 11, 1955, was struck and killed by a truck. The defendants Carl J. Ford, Connie Mack Ford and A.J. Ford, copartners trading as Ford Produce Company, with their principal office at Raleigh, North Carolina, were the owners of the truck. The defendant G.F. Dowd, their employee, was driving it, en route from Sanford, Florida, to Raleigh.
Defendants' motion, at the close of all of the evidence, for direction of verdict, was denied, and the case was submitted to the jury, which found for the plaintiff five thousand ($5,000.00) dollars actual damages. Thereafter, on defendants' motion for judgment n. o. v., the trial judge set the verdict aside and ordered judgment for the defendants upon the following grounds:
1. That negligence on the part of the driver of the truck could not reasonably be inferred from the evidence; and
2. That if the evidence could be viewed as supporting the allegations of negligence on the driver's part, then the only reasonable inference that could be drawn from all of the evidence was that the death of plaintiff's intestate resulted from his own contributory negligence.
Appeal from that order necessitates review of the evidence bearing on the accident. That on the part of the plaintiff was wholly circumstantial, the substance of it being as follows:
Miller Williams, the decedent, a colored man about fifty-four years of age, was employed as a handyman, and lived, on the farm of Mr. Hodge on U.S. Highway 15, two miles north of Paxville. Thomas Harvin, who also worked on Mr. Hodge's farm, and whose residence was some 75 or 80 yards north of Mr. Hodge's testified that he and Williams finished work about dusk on the afternoon of February 10; and that was the last time he saw Williams until after the accident, which occurred on the highway at a point about 50 or 75 yards from Harvin's house. When they separated at the end of their day's work, Williams had told Harvin that he was going to the home of Cassie Perry, near Paxville. Harvin testified that he went to the scene of the accident shortly after it happened, which was, as before stated, about 1:30 a. m. on February 11. He did not say, nor does the evidence otherwise disclose, how his attention had been called to the accident. He testified that when he arrived at the scent Williams' body was lying in the west lane (i. e., left of the center line, from the standpoint of northbound traffic) of the pavement, about two or three feet from the dirt shoulder; that a car was parked on the dirt shoulder on the right (east) side of the highway; that there were tire marks on the left side of the pavement; and that between the parked car and the body of Williams there was room enough for a truck to pass through. He testified also that the defendants' truck and another truck were at the scene, but he did not specify their exact location. State Highway Patrolman McElhaney, who investigated the accident, testified:
The accident occurred on U.S. Highway 15 about a mile and a half north of Paxville. When he arrived at the scene the body of Williams was on the pavement, approximately four feet from its left edge going north. This highway is in most places twenty-four feet wide, but he did not know its width at the point in question; it is straight and level in both directions from this point. It had rained earlier in the night, and the road was still wet, but it was not raining when the witness was there. He found tire marks, forty feet in length, on the left (west) side of the road; but he could not say whether they were brake marks or skid marks, nor could he recall whether they were straight or curved. Upon his memory being refreshed from the transcript of his testimony at the coroner's inquest, he recalled that the marks on the road from their starting point were of "one wheel on each side of the center line." In the left lane he found some "blood and marks, also the pedestrian's hat and some change", but nothing to indicate that the man had been struck in the right lane. He saw the defendants' truck, which was then parked on the right side of the pavement, headed north; he found a "mashed-in-place" on one of its fenders, but was not sure which fender. The driver of the truck admitted that he had run into Williams. The accident did not occur at an intersection or at a marked cross-walk. At some distance, there was a house on each side of the road, their driveways entering the highway several hundred yards from the place of the accident.
Louis Richburg, driver for Samuels Funeral Home, testified that he went to the scene of the accident to bring Williams' body in. He arrived ahead of the highway patrolman, and covered the body, which was about two feet from the left (west) edge of the pavement.
N.R. Blackwell, the embalmer, testified that examination of Williams' body disclosed that the neck, both legs, and right arm had been broken.
The foregoing is all of the evidence offered by the plaintiff on the issue of the defendants' negligence. Following is the substance of the evidence on the part of the defendants:
One Eddie Davis testified: that Williams had been with him on the night of February 10 from "first night" until around 10:00 or 10:30 p. m.; that they had together gone to a place near the Sumter County line; that they had found some liquor in the woods; that both of them had been drinking a little, but neither of them was drunk. From the place near the county line he took Williams to Cassie Perry's house, where he left him; and when Williams got out of the car he, Davis, went on home.
Cassie Perry testified: that her house is about half a mile from Paxville; that she saw Williams on the night in question "directly after first dark"; and again at between 10:00 and 11:00 p. m., when he came back in company with Eddie Davis, who put him out in her yard; that she was having a prayer meeting in her house that night, and Williams didn't come in "because he and Ned had been off"; that he didn't stay in the yard long; and that when he left he was walking "just as good as anyone." She did not state what direction Williams took when he left; and his whereabouts from the time of his departure, about 11:00 p. m. until the time of the accident, is not revealed by any of the testimony.
The defendants produced the testimony of three eyewitnesses to the accident, towit: G.F. Dowd, the driver of the truck; John F. Findley, a stranger; and Norman B. Pyle, an acquaintance of Dowd, who was driving another truck behind ...