Rowe v. Murphy , 250 N.C. 627 ( 1959 )

109 S.E.2d 474 (1959) 250 N.C. 627

John Jacob ROWE
v.
Roosevelt MURPHY, Morris Johnson and Sanford W. Johnson.

No. 165.

Supreme Court of North Carolina.

July 2, 1959.

Isaac C. Wright, Wilmington, and Corbett & Fisler, Burgaw, for plaintiff, appellant.

Poisson, Campbell & Marshall and L. J. Poisson, Jr., Burgaw, for defendants Johnson, appellees.

DENNY, Justice.

The appellant's first assignment of error is based on exceptions to the ruling of the trial judge in sustaining the defendants' objection to the following question: "At Malpass' Corner could he have gotten his car completely off the hard surface road?" and allowing defendants' motion to strike the answer of the plaintiff which was made voluntarily in the affirmative.

There is no evidence in this record that the defendant Morris Johnson knew anything about the condition of the road at Malpass' Corner or that he knew Malpass' Corner was nearby. In fact, he testified, "I do not frequently drive that road. I did not know exactly where I was as far as side roads or anything else. After the motor almost stopped it began squealing. I raised the hood and checked the oil line and it was broken."

The proffered evidence was inadmissible, calling for a conclusion and, likewise, in light of the evidence, it was inadmissible to establish negligence on the part of Morris Johnson with respect to the place where he parked his car. Moreover, J. R. Roupe, a State Highway Patrolman, was permitted to testify on behalf of the plaintiff, without objection, as follows: "At Malpass' Corner about 100 yards from the scene the shoulder is approximately 25 feet wide. This extends westwardly from the road intersection about 70 feet."

In Price v. Gray, 246 N.C. 162, 97 S.E.2d 844, 847, it is pointed out that "an exception is waived when other evidence of the same import is admitted without objection. Hughes v. Anchor Enterprises, Inc., 245 N.C. 131, 95 S.E.2d 577, [63 A.L.R. 2d 685]; Spears v. Randolph, 241 N.C. 659, 86 S.E.2d 263; Wilson v. Commercial Finance Co., 239 N.C. 349, 79 S.E.2d 908; White v. Price, 237 N.C. 347, 75 S.E.2d 244." This assignment of error is without merit and is therefore overruled.

The second assignment of error is directed to the introduction of paragraph five of the complaint over the objection of the plaintiff (exception No. 3), and to the refusal of the court to permit the plaintiff to offer in reply paragraph six of his complaint (exception No. 4).

The defendants Johnson were permitted to read into evidence paragraph five of the complaint wherein plaintiff alleges specific acts of negligence against the defendant Murphy. Defendant Murphy had been served with summons and complaint and did not file answer. Under G.S. § 1-159 this constitutes an admission of the allegations. Wilson v. Chandler, 235 N.C. 373, 70 S.E.2d 179. Furthermore, the defendants Johnson had admitted allegations contained in paragraph five of the complaint and had made similar allegations against the defendant Murphy in their further answer and further defense to which the defendant Murphy made no reply. Where an allegation in the complaint is not denied in the answer it is admitted and is as effectual as if found by the jury. Bonham v. Craig, 80 N.C. 224. Exception No. 3 is without merit.

The refusal of the court, upon objection, to permit the plaintiff to introduce in evidence in his own behalf paragraph six of his complaint was proper, since the defendants Johnson had denied the allegations contained therein. Exception No. 4 is likewise without merit and therefore the second assignment of error is overruled.

The third assignment of error challenges the correctness of his Honor's ruling in sustaining the motion of defendants Johnson for judgment as of nonsuit.

The only allegations of negligence made by the plaintiff against the defendant Morris Johnson are set forth in paragraph four of the complaint as follows: "The defendant Morris Johnson was negligent in that he did not have any flares or lights back behind his automobile and did not give any warning to approaching automobiles that he was partly on the hard surface road, and though he had a flashlight he did not flag down the oncoming car though he had ample time to do so; though he could see that the oncoming car and driver was not conscious of the location of his automobile and apparently was not going to turn out to pass."

The plaintiff has elected to allege only two acts or omissions as negligence against the defendant Morris Johnson: (1) The failure to put out flares or lights behind the disabled vehicle, and (2) the failure to warn the approaching vehicle of the position of his vehicle on the highway. There is no allegation with respect to any failure on the part of the defendant Morris Johnson to exercise due care under the circumstances involved, or any failure on his part to warn plaintiff with respect to the approaching car. Plaintiff's evidence clearly established the fact that he was fully aware of the presence of the approaching car but that he paid no attention to it. He testified, "We heard this oncoming car * * *. Both of us heard Roosevelt's car coming * * *. I heard the car coming but I did not know how far off it was * * *. I stayed between the two cars, as the noise of the oncoming car continued to grow louder. I didn't look up to see where the car was." Furthermore, a failure to warn the plaintiff of what he already knew is without significance. Petty v. Cranston Print Works Co., 243 N.C. 292, 304, 90 S.E.2d 717.

The plaintiff contends that the defendant Morris Johnson violated the provisions of G.S. § 20-161 which provides in pertinent part as follows: "(a) 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: Provided, in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in both directions upon such highway: * * * Provided further 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; * * * red flares or lanterns * * *. (c) The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position."

Under the facts disclosed on this record, it would seem that the defendant Morris Johnson did not violate any of the provisions of the above statute. In the first place, the car was so parked as to leave not less than 15 feet upon the main traveled portion of the highway opposite the parked car for the free passage of other vehicles on the highway. Moreover, the evidence established the fact that a clear view of the parked car could be obtained from a distance of more than 200 feet in both directions upon the highway. Furthermore, the requirement with respect to placing "red flares or lanterns" on the highway applies to trucks, trailers or semi-trailers disabled on the highway and not to automobiles. The provisions of G.S. § 20-161 do not "apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position."

In the instant case, if it should be conceded that it was negligence on the part of the defendant Morris Johnson to park the car in the manner and at the place it was parked, such negligence must have been the proximate cause of plaintiff's injuries or one of the proximate causes thereof before the plaintiff would be entitled to recover against the defendants Johnson. Burke v. Carolina Coach Co., 198 N.C. 8, 150 S.E. 636; Ham v. Greensboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147.

In the case of Powers v. Sternberg, supra [213 N.C. 41, 195 S.E. 89], this Court, speaking through Stacy, C. J., said: "Even if it be conceded that defendant's truck was negligently parked on the side of the road, * * * which may be doubted on the facts revealed by the record, * * * still it would seem that the active negligence of the driver of the Bedenbaugh car was the real, efficient cause of plaintiff's intestate's death. * * *" (Citations omitted.) This case and the cases of Skinner v. Evans, 243 N.C. 760, 92 S.E.2d 209, and Basnight v. Wilson, 245 N.C. 548, 96 S.E.2d 699, as well as many other cases, constitute ample authority in support of the ruling below in allowing the judgment as of nonsuit.

It is regrettable indeed that the plaintiff suffered such serious injuries in the collision involved in this action. However, the record reveals no negligence on the part of the defendant Morris Johnson that would justify the submission of the case to a jury based on the allegations of negligence contained in the complaint and the evidence adduced in the trial below. The plaintiff's injuries resulted from the heedless and irresponsible conduct of the defendant Murphy who was driving his car while under the influence of an intoxicating liquor or narcotic drug. The defendant Morris Johnson was under no duty to anticipate negligence on the part of other motorists upon the highway. Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Skinner v. Evans, supra; Basnight v. Wilson, supra.

In the trial below there is no error in law.

Affirmed.