No. 451.

70 S.E.2d 845 (1952)

235 N.C. 568


Supreme Court of North Carolina.

May 21, 1952.

Attorney(s) appearing for the Case

Thos. W. Ruffin, Raleigh, for plaintiff appellant.

Clem. B. Holding, Raleigh, for defendant appellee.

WINBORNE, Justice.

When the evidence offered by plaintiff, as shown in the record on this appeal, is taken in the light most favorable to him, is there sufficient evidence to take the case to the jury? The trial court ruled in the negative, and we approve.

In order to establish actionable negligence plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff, under the circumstances in which they were placed; and (2) that such negligent breach of duty was the proximate cause of the injury—a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, and numerous other cases.

Tested by this rule, it may be fairly doubted that there is shown any evidence of actionable negligence on the part of defendant in the present action. The uncontradicted statement of defendant's driver, offered in evidence by plaintiff through his witness, the deputy sheriff, refutes the theory of "a parking" of defendant's tractor-trailer at the place of the collision in question, within the meaning of the statute, G.S. § 20-161 (a), as amended by Chap. 1165 of 1951 Session Laws of North Carolina. The statute declares that "No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway".

And the terms "park" or "leave standing" as used in this statute have been interpreted by this Court as meaning "something more than a mere temporary or momentary stop on the road for a necessary purpose." 42 C.J. 613; 60 C.J.S., Motor Vehicles, § 10; Stallings v. Transport Co., 210 N.C. 201, 185 S.E. 643; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Leary v. Bus Corp., 220 N.C. 745, 18 S.E.2d 426; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Morgan v. Coach Co., 225 N.C. 668, 36 S.E.2d 263.

In Peoples v. Fulk, supra, [220 N.C. 635, 18 S.E.2d 149] in opinion by Barnhill, J., it is said: "Starting and stopping are as much an essential part of travel on a motor vehicle as is `motion'. Stopping for different causes, and according to the exigencies of the occasion, is a natural part of the `travel'. The right to stop when the occasion demands is incident to the right to travel"—citing cases.

Hence, plaintiff's car having approached before the driver of the defendant's tractor-trailer had time, after it stopped, to get out of the cab, the tractortrailer was not parked or left standing upon the paved portion of the highway in violation of the above-quoted provision of G.S. § 20-161(a).

True, there is a proviso to G.S. § 20-161 (a) which reads: "That in the event that a truck, trailer or semi-trailer be disabled upon the highway that the driver of such vehicle shall display, not less than two hundred feet in the front and rear of such vehicle, a warning signal * * * after sundown red flares or lanterns. * * *" But this statute contemplates that the driver shall have a reasonable time within which to perform this duty of displaying warning signals. The law will not hold him to be negligent in failing to do that which he has not had time to do. Hence, we hold that, in the light of the uncontradicted statement of the driver of defendant's tractor-trailer, that the plaintiff's car approached before he had time to get out of the cab, so offered in evidence by plaintiff, a violation of the provisions of this proviso is not made to appear.

Now, then, is there evidence that the tractor-trailer of defendant was permitted to be on the highway without lights?

The statute, G.S. § 20-129, declares when vehicles must be equipped with lights. Subsection (a) reads: "Every vehicle upon a highway within this state during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead, shall be equipped with lighted front and rear lamps as in this section respectively required for different classes of vehicles, and subject to exemption with reference to lights on parked vehicles as declared in § 20-134."

And subsections (d) and (e) pertain to rear lamps and clearance lamps respectively.

In this connection, the deputy sheriff, in his testimony, refers to a big stop light under, and clearance lights and taillight on defendant's tractor-trailer, and stated that the driver of the tractor-trailer said that, seeing the headlights coming, "he put his foot on the brake pedal to operate it * * that it was connected with the stop light in the back, that he started using that as a signal * * *", and "that his clearance lights were burning when he stopped."

On the other hand, plaintiff who, according to his own statement was completely blinded, and traveling at speed of forty two miles an hour until about 15 to 18 feet from the tractor-trailer, when he first saw it, testified that "there were no lights on the rear of the truck," and again, "that there were no lights burning on the truck,—nowhere on the rear that I could see there."

If it be conceded that this testimony of plaintiff tends to show that defendant did not have lights on the rear of the tractortrailer, the mere statement, in connection with surrounding circumstances, clearly shows that the absence of lights was not a proximate cause of the collision. Hence there is no evidence of actionable negligence in support of the allegations of the complaint.

And it may be noted that all other testimony as to lights on the tractor-trailer was from witnesses who arrived at the scene after the collision. Their testimony that at that time there were no lights on the tractor-trailer has no probative force upon the question as to whether the rear lights of the tractor-trailer were burning at the time of the collision. See Peoples v. Fulk, supra.

But if it be conceded that defendant was negligent in some respect alleged in the complaint, it is manifest from the evidence that the speed at which plaintiff was driving his automobile was the proximate cause, or at least one of the proximate causes of his injury and damage. The case comes within and is controlled by the principles enunciated and applied in Weston v. Southern R.R., 194 N.C. 210, 139 S.E. 237; Lee v. Atlantic Coast Line R. Co., 212 N.C. 340, 193 S.E. 395; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608; Sibbitt v. Transit Co., 220 N.C. 702, 18 S.E.2d 203; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Allen v. Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Oil Corp., 228 N.C. 774, 47 S.E.2d 254; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Brown v. Bus Lines, 230 N.C. 493, 53 S.E.2d 539; Hollingsworth v. Grier, 231 N.C. 108, 55 S.E.2d 806; Baker v. Atlantic Coast Line R. Co., 205 N.C. 329; 171 S.E. 342; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844. See also Marshall v. Southern R. Co., 233 N.C. 38, 62 S.E.2d 489.

In this connection, the speed statute, G. S. § 20-141, as rewritten in Sec. 17, Chap. 1067 or 1947 Session Laws of N. C., declares in pertinent part:

"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. "(b) Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of the following speeds: "1. Twenty miles per hour in any business district; "2. Thirty five miles per hour in any residential district; "3. * * *; "4. Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this Subsection for passenger cars * * *.

"(c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed * * * when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on * * * the highway in compliance with legal requirements and the duty of all persons to use due care."

In this connection this Court, in Weston v. Southern R. Co., supra [194 N.C. 210, 139 S.E. 238], speaking through Brogden, J., to a factual situation somewhat similar to that here, had this to say: "The general rule under such circumstances is thus stated in Huddy on Automobiles, 7th Ed. 1924, § 396: `It was negligence for the driver of the automobile to propel it in a dark place, in which he had to rely on the lights of his machine, at a rate faster than enabled him to stop or avoid any obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of obstructions. * * If the lights on the automobile would disclose obstructions only 10 yards away it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than 10 yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen.'" This principle has been brought forward and applied in Lee v. Atlantic Coast Line R. Co., supra; Beck v. Hooks, supra; Sibbitt v. Transit Co., supra; Dillon v. Winston-Salem, supra, and others.

In Beck v. Hooks, supra [218 N.C. 105, 10 S.E.2d 612], the rule is stated in this way: "It is not enough that the driver of plaintiff's automobile be able to begin to stop within the range of his lights, or that he exercise due diligence after seeing defendants' truck on the highway. He should have so driven that he could and would discover it, perform the manual acts necessary to stop, and bring the automobile to a complete stop within the range of his lights. When blinded by the lights of the oncoming car so that he could not see the required distance ahead, it was the duty of the driver within such distance from the point of blinding to bring his automobile to such control that he could stop immediately, and if he could not then see, he should have stopped. In failing to so drive he was guilty of negligence which patently caused or contributed to the collision with defendants' truck, resulting in injury to plaintiff."

In the light of the provisions of the statute, G.S. § 20-141, as so rewritten, the contributory negligence of plaintiff clearly appears from his own testimony and the physical facts shown in the evidence. He says that while completely blinded by the bright lights of an oncoming car, he drove "for 5 or 6 seconds" at a speed of forty two miles per hour, a distance he gives as "125 to 150 feet", but mathematically calculated for the time and at that speed, 305 to 360 feet. "Such is the stuff of which wrecks are made", wrote Stacy, C. J., in McKinnon v. Motor Lines, supra [228 N.C. 132, 44 S.E.2d 737].

While plaintiff was under no duty to anticipate negligence on the part of others traveling the highway, it was his duty to anticipate presence of others, Hobbs v. Coach Co., 225 N.C. 323, 34 S.E.2d 211, and hazards of the road, such as disabled vehicle, and, in the exercise of due care, to keep his automobile under such control as to be able to stop within the range of his lights.

The judgment of nonsuit entered below will be and it is hereby



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