Kuykendall v. Independent Coach Line, Inc. , 196 N.C. 423 ( 1928 )

Pee CuRIam.

It was in evidence that on 30 March, 1927, plaintiff was riding on tbe fender of a trailer to a bus of tbe Independent Coacb Line, Inc., driven by Albert Reeves, going from Canton to Red Hill. Tbe regular bus was crowded and tbe trailer was crowded. Plaintiff paid tbe regular fare and got on tbe front fender of tbe car, with bis feet on tbe bumper. The driver of the trailer bad driven tbe car about 30 feet wben it struck tbe tar-kiln or tank, owned by tbe town of Canton, used in tbe repair of its streets, wbicb was 6 or 8 feet from tbe sidewalk and in the street, throwing boiling tar over plaintiff to bis serious damage. It was day time, between 11 and 12 o’clock. Tbe driver was sitting on tbe left-hand side of tbe trailer. Plaintiff was not directly in front of him, but a little to thé side. Plaintiff’s position obstructed tbe driver’s .vision on one side. Tbe tar-kiln was struck a little to plaintiff’s side.

Albert Reeves, a witness for plaintiff, testified, in part: “Jim Kuyken-dall (tbe plaintiff), was on tbe left front fender and a fellow from Georgia on tbe right front fender. With these two men on tbe fender I could not see an object up tbe street unless it would be right in tbe center; I couldn’t see on tbe side for Mr. Kuykendall was on tbe fender and tbe other man on tbe other. . . . My taxi was full and I beard somebody tell Kuykendall, 'You boys will have to take a fender,’ and they said 'All right,’ and climbed on tbe fender. ... I could see right across tbe radiator; tbe left part of tbe bumper where Kuykendall was, was' where it bit. ... I couldn’t see from tbe rear across and couldn’t see over tbe left wheel. ... If I bad seen it at all I would have stopped, or would have passed on tbe right-hand side of it, but I couldn’t see him. . . . There was plenty of room on tbe left to pass if I could have seen him. I couldn’t see him because that fellow was in front and be pulled over there; I am speaking of Mr. Kuyken-dall. Tbe reason I couldn’t see him was because be was in front of me on tbe fender. If be hadn’t been on tbe front fender I think I could have easily seen tbe tar-kiln. . . . Tbe only statement that I made in court before Judge Mease was that I bad a man on tbe fender and couldn’t see tbe tar kettle.”

The collision was in broad day light. The kiln could easily have been seen, like an automobile, or any other vehicle, in the street. It was the duty of the driver of the trailer, to use due care and keep a proper lookout. It was not negligence, as a matter of law, in plaintiff riding on the fender if he had express or implied permission, especially when the trailer or car was crowded; but when he got on the fender, in front of the driver and obstructed his view, which he knew, or in the exercise of ordinary care ought to have known, under the facts and circumstances of this case, we are of the opinion that he was guilty of contributory negligence. On all the evidence he put himself in the place that obstructed the driver’s view, and this was the proximate cause of his injury. The judgment of nonsuit in the court below is

Affirmed.