No. 237.

92 S.E.2d 209 (1956)

243 N.C. 760

Ollin SKINNER v. Perry EVANS, W. R. Pridgen and J. W. Thompson.

Supreme Court of North Carolina.

April 18, 1956.

Attorney(s) appearing for the Case

Talmadge L. Narron, Wilson, for plaintiff-appellant.

Gardner, Connor & Lee, Wilson, for defendants Pridgen and Thompson, appellees.

Dupree, Weaver & Montgomery, Raleigh, for defendant Evans, appellee.

WINBORNE, Justice.

Admitting the truth of the allegations of fact set forth in the complaint, as well as relevant inferences of fact necessarily deducible therefrom, but not conclusions of law, as is done in testing the sufficiency of a complaint to state a cause of action, when challenged by demurrer, Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Muse v. Morrison, 234 N.C. 195, 66 S.E.2d 783; Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915, and numerous other cases, does the complaint in the case in hand state facts constituting a cause of action (1) against defendants Pridgen and Thompson, or (2) against defendant Evans for actionable negligence?

First as to defendants Pridgen and Thompson: Stripping the complaint of allegations of conclusions of law the facts alleged fail to state any legal duty which these defendants owed the plaintiff, under the circumstances in which they were placed. The temporary stopping of the automobile upon the highway under the circumstances was not violative of the provisions of G.S. § 20-161(a), as amended by Chapter 1165 of 1951 Session Laws of North Carolina pertaining to stopping on a highway. See among other cases Stallings v. Buchan Transp. Co., 210 N.C. 201, 185 S.E. 643; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Leary v. Norfolk Southern 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. Carolina Coach Co., 225 N.C. 668, 36 S.E.2d 263; Morris v. Jenrette Transp. Co., 235 N.C. 568, 70 S.E.2d 845.

Moreover, the facts alleged fail to state a relationship of passenger and carrier as between plaintiff and these defendants, White v. Chappell, 219 N.C. 652, 14 S.E.2d 843, by which these defendants assumed any obligation to protect plaintiff from dangers upon the highway. Furthermore, the defendants Pridgen and Thompson were under no duty to anticipate negligence on the part of others upon the highway. See Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, which is cited in many later cases.

(2) But as to defendant Evans: The facts set forth in the complaint seem to present a situation both in respect to allegations of negligence on the part of defendant Evans and in respect to averments of contributory negligence on the part of plaintiff similar to that in the case of Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462.

Hence, on the authority of that case, Williams v. Henderson, supra, this Court holds that the allegations, in both respects, are sufficient, if supported by evidence, to constitute a case for a jury under proper instructions of the trial judge.

Therefore, the judgment from which appeal is taken as to defendants Pridgen and Thompson is affirmed, and the judgment from which appeal is taken as to defendant Evans is reversed.

As to defendants Pridgen and Thompson —affirmed.

As to defendant Evans—reversed.

DEVIN, J., took no part in the consideration or decision of this case.


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