Boles v. Hegler , 232 N.C. 327 ( 1950 )

59 S.E.2d 796 (1950) 232 N.C. 327

BOLES
v.
HEGLER et al.

No. 749.

Supreme Court of North Carolina.

June 9, 1950.

Elledge and Browder, Winston-Salem, for plaintiff-appellee.

Craige & Craige, Winston-Salem, for defendants-appellants.

DEVIN, Justice.

The only error assigned by defendants was the denial of their motion for judgment of nonsuit. It was not controverted that there was evidence of negligence on the part of the defendants, but it was contended the evidence conclusively established the contributory negligence of the plaintiff, entitling defendants to the allowance of their motion on this ground.

The rule is well settled that in order to sustain a nonsuit on this ground the evidence tending to show contributory negligence must be so clear that no other conclusion can reasonably be drawn there. Maddox v. Brown, N.C., 59 S.E.2d 791; Carruthers v. Southern Ry. Co., N.C., 59 S.E.2d 782; Samuels v. Bowers, N.C., 59 S.E.2d 787; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.

The material facts were these: As a part of Waughtown Street in Winston-Salem is a bridge over the tracks of the Southbound Railway. The bridge from east to west is 148 feet long and 40 feet wide from curb to curb, as wide or wider than the paved street on either side, and slightly higher. On the evening of October 29, 1948, plaintiff's son, who was employed in the vicinity, left plaintiff's automobile parked on the north side of the bridge next to the curb, 10 or 11 feet from the west end of the bridge. Other cars were then parked on this side of the roadway on the bridge as seems to have been the custom. It was not clear whether at that time there were "no parking" road signs at eastern end of the bridge. At 10:15 P.M. defendants' bus approached the bridge traveling west at the rate of 20 to 25 miles per hour and struck the rear of plaintiff's automobile causing substantial damage. Defendant Gardner, who was driving the bus, testified that when he was about halfway across the bridge he was blinded by the lights of an automobile approaching the bridge from a side street west, and slowed down to 15 or 20 miles per hour. At a speed of 20 to 25 miles per hour he could have stopped the bus in 30 feet. Defendants' driver further testified as he approached there was then only plaintiff's automobile parked on the bridge, and that he saw it just before he was blinded by the lights of the car approaching from the west. He estimated he was 40 feet from plaintiff's automobile when he first saw it, and later reduced his estimate to 25 or 30 feet, but it would seem if he was halfway across the bridge and the plaintiff's automobile was parked 10 or 11 feet from the west end of the bridge, he must have been 50 feet or more away when he became aware of the presence and location of plaintiff's automobile.

Furthermore, as the bridge was 40 feet wide from curb to curb, and plaintiff's automobile was parked against the curb on the north, this would have left a clear space of 30 feet for the passage of other vehicles. The car approaching from the side street west was 10 or 15 feet from the bridge when its lights blinded defendants' driver.

The parking of plaintiff's automobile on a highway bridge was prohibited by G.S. § 20-161, and the general rule is that the violation of a statute enacted in the interest of safety constitutes negligence per se, but it is equally well settled that before negligence or contributory negligence can be established as determinative of the action, causal connection between the result and the disregard of the statutory mandate must be made to appear. Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311.

So that, the question after all was one of proximate cause. Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688; Wood v. Carolina Telephone & Telegraph Co., 228 N.C. 605, 46 S.E.2d 717, 3 A.L.R. 2d 1; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 544, 54 S.E.2d 45. Was the parking of plaintiff's automobile on the bridge under the circumstances here disclosed a proximate cause of the injury sustained, or was it "merely a circumstance of the accident and not its proximate cause"? The answer to this question was properly left for the determination of the jury. Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Allen v. Dr. Pepper Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Atkins v. White Transportation Co., 224 N. C. 688, 32 S.E.2d 209; Cummins v. Southern Fruit Co., 225 N.C. 625, 36 S.E.2d 11; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E.2d 623.

The question of contributory negligence is usually one for the jury. It is only when but one inference may be drawn from the facts in evidence that the court will declare that an act was or was not the cause of the injury complained of or per force constituted contributory negligence. "``What is the proximate cause of an injury is ordinarily a question for the jury. * * * It is to be determined as a fact in view of the circumstances of fact attending it.'" Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740, 742; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Thomas v. Thurston Motor Lines, 230 N.C. 122, 131, 52 S.E.2d 377; Maddox v. Brown, N.C., 59 S.E.2d 791.

We conclude there was no error in denying defendants' motion for judgment of nonsuit.

In the trial we find

No error.