Pender v. National Convoy & Trucking Co. ( 1934 )

CONNOR, J.

In the 9th paragraph of his complaint, the plaintiff alleges that the collision between his truck and the truck owned by the defendant, the National Convoy and Trucking Company, and operated at the time of the collision by the defendant, Floyd S. Williams, its employee, was caused by the negligence of the defendants, in that:

“(a) Defendants knowingly, wilfully, carelessly, recklessly and negligently attempted to turn an automobile truck more than 61 feet long, on a narrow road, on a curve completely blocking said road to other vehicles using the same;

(b) Defendants wilfully, recklessly, and negligently, without due care for the safety of others using said road, blocked the same without giving warning by flagman or other danger signals, to drivers of vehicles coming down a steep grade and around a curve above the point so blocked by defendants;

(c) By driving and operating upon the highways of the State a truck with a trailer attached dangerous to the traveling public without having thereon some signal of danger to show others using said highways of their danger; said trailer being of a length in excess of that allowed by law.”

Conceding that there was no evidence at the trial of this action, tending to show negligence on the part of the defendants as specified in sections (a) and (c) of paragraph 9 of the complaint, we are of the opinion that there was evidence tending to show negligence as specified in section (b) of said paragraph. For this reason, there was no error in the refusal by the trial court of defendants’ motion for judgment as of nonsuit, at the close of all the evidence. The defendant, Floyd S. "Williams, after he found himself unable to move the truck and the trailer, because the wheels of the truck had stuck in the soft ground off the pavement, owed the duty to plaintiff and others approaching the obstruction in the highway, on automobiles or trucks, to exercise reasonable care to warn them of their peril. A failure to perform this duty was negligence. There was evidence tending to show that such negligence was the proximate cause of the collision, resulting in injury to the plaintiff.

The exceptions to the charge of the court to the jury are without merit. The instructions with respect to negligence on the part of the defendants, and contributory negligence on the part of the plaintiff, were in accord with well settled principles of law. There was no error in the trial. The judgment is affirmed.

No error.