Racine v. Boege , 6 N.C. App. 341 ( 1969 )

169 S.E.2d 913 (1969) 6 N.C. App. 341

Oliver B. RACINE
v.
Frederick D. BOEGE.

No. 6912SC458.

Court of Appeals of North Carolina.

October 22, 1969.

Williford, Person & Canady, by N. H. Person, Fayetteville, for plaintiff appellant.

Anderson, Nimocks & Broadfoot, by Henry L. Anderson, Fayetteville, for defendant appellee.

PARKER, Judge.

The sole question presented is whether the trial court erred in entering judgment of nonsuit. In passing on this question it is elementary that all the evidence which tends to support plaintiff's claim must be taken as true and must be considered in the light most favorable to him, resolving all contradictions and discrepancies in his favor and giving him the benefit of every reasonable inference which may legitimately be drawn therefrom. Clarke v. Holman, 274 N.C. 425, 163 S.E.2d 783.

Plaintiff alleged that defendant was negligent in several respects, including that he drove his vehicle at a speed greater than was reasonable and prudent under the existing circumstances, in violation of G.S. § 20-141(a), and that he failed to reduce speed when a special hazard existed, in violation of G.S. § 20-141(c). Plaintiff presented no direct evidence as to the manner in which defendant was operating his vehicle at the time of the collision; he was himself the only eyewitness who testified to the actual collision, and he neither saw nor heard defendant's truck before the collision occurred. Therefore, the question before us resolves itself into whether, under all of the circumstances of this case, the fact that defendant's truck collided with the vehicle ahead of it provided by itself sufficient evidence of negligence on the part of the defendant to require submission of that issue to the jury.

"The relative duties automobile drivers owe one another when they are traveling along a highway in the same direction are governed ordinarily by the circumstances in each particular case." Beaman v. Duncan, 228 N.C. 600, 604, 46 S.E.2d 707, 710. "Ordinarily the mere fact of a collision with a vehicle ahead furnishes some evidence that the following motorist was negligent as to speed, was following too closely, or failed to keep a proper lookout." Clark v. Scheld, 253 N.C. 732, 737, 117 S.E.2d 838, 842. This is, however, by no means an absolute rule to be mechanically applied in every rear-end collision case. Whether in a particular case there be sufficient evidence of negligence to carry that issue to the jury must still be determined by all of the unique circumstances of each individual case, the evidence of a rear-end collision being but one of those circumstances. Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393; Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62, 96 A.L.R. 2d 754; Clark v. Scheld, supra. If all of the evidence, even when considered in the light most favorable to the plaintiff, negatives any actionable negligence on the part of the defendant (as in Jones v. C. B. Atkins Co., 259 N.C. 655, 131 S.E.2d 371), or if the evidence when so considered still leaves the question of any negligence on the part of the defendant as a matter of mere speculation and conjecture (as in Clark v. Scheld, supra), nonsuit is proper.

G.S. 20-141 (a) provides that "(n)o person shall drive a vehicle on a highway * * at a speed greater than is reasonable and prudent under the conditions then existing." G.S. 20-141 (c) provides that when special hazards exist by reason of weather or highway conditions, "speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care."

In the present case, accepting plaintiff's evidence as true, considering it in the light most favorable to him, resolving any contradictions and discrepancies therein in his favor, and giving him the benefit of every legitimate inference to be drawn therefrom, as we are required to do in passing on the correctness of the trial court's judgment of involuntary nonsuit, plaintiff's evidence permits a legitimate inference by a jury that the collision and plaintiff's injuries were proximately caused by defendant's negligence in driving his truck at a speed greater than was reasonable and prudent considering the conditions then and there existing. There was evidence of a fog so dense that visibility was almost zero. While plaintiff himself testified they were "not very much" into the fog when the collision occurred, the investigating police officer testified that the fog commenced on the south side of the Cape Fear River bridge and the collision occurred approximately 1,000 feet north of the bridge. While there is some discrepancy in the evidence as to the time the officers went to the scene to investigate as it related to the time the collision occurred, one officer testifying they went at 6:05 a. m. and plaintiff himself testifying the collision occurred at 6:15 a. m., it is a legitimate inference that the officers arrived on the scene very shortly after the collision occurred and that in the meantime there had been no material change in the location or physical characteristics of the fogbank. It was, therefore, a legitimate inference that the vehicles had actually progressed at least 1,000 feet into the fog before the collision occurred. Plaintiff testified that the car in which he was riding was moving "20 or 25 miles per hour" when it was struck in the rear by defendant's truck. Since necessarily defendant's truck must have been traveling faster than the car in which plaintiff was riding, it would be a legitimate inference for the jury to conclude that defendant was still driving at a speed in excess of 25 miles per hour even after he had penetrated approximately 1,000 feet into a fogbank so thick that visibility therein had been reduced practically to zero. Obviously this presents a different situation than was present in the case of Clark v. Scheld, supra, in which the motorists were confronted without any prior warning by an artifically created chemical fog and it did not appear there was sufficient reaction time or space within which to stop after defendant discovered the foggy condition.

While it is entirely possible that the defendant in the present case was exercising every care which a reasonable and prudent driver would have exercised under the circumstances confronting him, and while certainly the evidence does not compel any finding of negligence on his part, we hold that under all of the circumstances there was sufficient evidence to require that the jury determine the issue, and the judgment of nonsuit is

Reversed.

CAMPBELL and GRAHAM, JJ., concur.