Sharpe v. Hanline , 265 N.C. 502 ( 1965 )

144 S.E.2d 574 (1965) 265 N.C. 502

Elizabeth L. SHARPE, Executrix of the Estate of Winford L. Sharpe, deceased
v.
W. E. HANLINE and/or Hanline Poultry Company, and Harry Lee Grier.

No. 296.

Supreme Court of North Carolina.

November 3, 1965.

Hedrick, McKnight & Parham, Charlotte, for plaintiff appellant.

Wardlow, Knox, Caudle & Wade, Charlotte, for defendant appellees.

DENNY, Chief Justice.

The sole assignment of error is based upon the exception to the ruling of the court below in granting defendants' motion for judgment as of nonsuit at the close of plaintiff's evidence.

It is provided in G.S. § 20-161 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: * * *."

The evidence adduced in the trial below is to the effect that defendant Grier parked the flat-bed pickup truck of Hanline on the shoulder of I-85 at an angle, with the rear left corner of the flat-bed truck protruding eight or ten inches into the traveled portion of the northern or outside lane of said highway. The uncontradicted evidence is to the effect that the shoulder of the road where the Hanline truck was parked was fifteen to eighteen feet wide. The evidence further tends to show that the parked vehicle had no lights or reflectors on it that could be observed by a motorist approaching the truck from its rear.

In our opinion, the provisions of G.S. § 20-161 require that no part of a parked vehicle be left protruding into the traveled portion of the highway when there is ample room and it is practicable to park the entire vehicle off the traveled portion of the highway.

Ordinarily, when it affirmatively appears from the plaintiff's evidence that at the time of the accident the plaintiff was violating a safety statute or was guilty of conduct which was the proximate cause or one of the proximate causes of the accident, he will be held guilty of contributory negligence as a matter of law. Weston v. R.R., 194 N.C. 210, 139 S.E. 237; Lee v. Atlantic Coast Line R. Co. R.R., 212 N.C. 340, 193 S.E. 395; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254.

In the instant case, there is no evidence that plaintiff's testate was violating any safety statute at the time of the accident. There is evidence, however, to the effect that at the time of the collision another vehicle was passing the Burlington Industries truck on its left.

In Lambert v. Caronna, 206 N.C. 616, 175 S.E. 303, it is said: "``Evidence tending to show that the plaintiff's automobile collided with defendant's truck parked partly across the highway on a dark night without a tail light in violation of statute, causing personal injury to the plaintiff and damage to his car, is sufficient to sustain an affirmative answer upon the issue of defendant's actionable negligence.

``Contributory negligence of the plaintiff will not be held to bar recovery as a matter of law when an inference in his favor is permissible from the evidence, and in this case where the defendant had parked its car on a dark night upon the side of the highway without a tail light, and there is a reasonable inference that under the existing conditions the plaintiff could not have seen the truck in time to have avoided the injury, in the exercise of ordinary care, the question of contributory negligence upon the issue is for the determination of the jury.'"

In the case of Cole v. Koonce, 214 N.C. 188, 198 S.E. 637, defendants' truck was parked on the side of the highway with the left rear of the truck protruding twenty-eight inches on the concrete. Plaintiff was nonsuited below. Upon appeal, this Court reversed and, among other things, said: "It is a familiar rule that a judgment of involuntary nonsuit on the ground of contributory negligence of the plaintiff cannot be rendered unless the evidence is so clear on that issue that reasonable minds could draw no other inference. * * * Where the factors of decision are numerous and complicated, and especially where the opinions and estimates of witnesses play a prominent part, the Court must exercise great care to avoid invading the province of the jury, when passing upon the conduct of the plaintiff and his ability, by the exercise of due care, to avoid the consequences of defendant's negligence. Practically every case must ``stand on its own bottom.'"

In Williams v. Frederickson Motor Express Lines, 198 N.C. 193, 151 S.E. 197, plaintiff collided with defendant's truck parked on a highway without a tail light. Brogden, J., speaking for the Court, in upholding a verdict for the plaintiff, said: "* * * (T)he law imposes upon the driver of a motor vehicle the duty of keeping a reasonably careful lookout, not only for other travelers, who are using the highway, but for dangers incurred along the journey. Huddy on Automobiles (7th Ed.) 950. As to whether a motorist, at a given time, was keeping a reasonably careful lookout to avoid danger is ordinarily an issue of fact, and hence the determination of such fact is for a jury. * * *"

In the case of Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251, Stacy, C. J., said: "There are two lines of decisions in our Reports involving highway accidents which turn on the question of contributory negligence. Hayes v. [Western Union] Telegraph Co., 211 N.C. 192, 189 S.E. 499. In this, as in other matters where a line must be drawn, there will be cases very near each other on opposite sides. Indeed, the line of demarcation may be difficult to plot in some instances. While simple enough in statement, its application is the place of the rub. Sibbitt v. [R. & W.] Transit Co., 220 N.C. 702, 18 S.E.2d 203. ``A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negligence, and take away the question of negligence and contributory negligence from the jury.' Moseley v. [Atlantic Coast Line] R.R. [Co.], 197 N.C. 628, 150 S.E. 184."

This Court recently held in the case of Rouse v. Peterson, 261 N.C. 600, 135 S.E.2d 549, that where plaintiff was driving her automobile within the maximum speed limit "she cannot be held contributorily negligent as a matter of law in outrunning her headlights, if she did, which we do not concede, and striking the rear end of the pickup truck stopped on the highway without lights. G.S. § 20-141 (e) * * *." See also Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276; Melton v. Crotts, 257 N.C. 121, 125 S.E.2d 396; Correll v. Gaskins, 263 N.C. 212, 139 S.E.2d 202.

In our opinion, plaintiff's evidence, when considered in the light most favorable to her, is sufficient to entitle her to go to the jury upon proper instructions on the issues of negligence, contributory negligence and damages, and it is so ordered.

The judgment as of nonsuit entered below is

Reversed.