Smith Ex Rel. Smith v. Goldsboro Iron & Metal Co. , 257 N.C. 143 ( 1962 )

125 S.E.2d 377 (1962) 257 N.C. 143

Kenneth Earl SMITH, a minor, by his next friend, Mrs. Eloise Smith,
v.
GOLDSBORO IRON & METAL COMPANY and Claudie Warrick.

No. 309.

Supreme Court of North Carolina.

May 9, 1962.

J. Faison Thomson, Jr., Goldsboro, Jones, Reed & Griffin, Kinston, for plaintiff appellant.

Taylor, Allen & Warren, John H. Kerr, III, Goldsboro, for defendants appellees.

DENNY, Chief Justice.

The plaintiff's action is based solely and exclusively on the alleged negligence of defendant Warrick in parking the truck of the corporate defendant on a residential street in the City of Goldsboro in violation of an ordinance of said City and the provisions of G.S. § 20-129.1, G.S. § 20-134 and G.S. § 20-161.

There is no affirmative evidence tending to show that the truck of the corporate defendant did not have reflectors on the rear thereof, as required by G.S. § 20-129.1(a), or that the truck was not otherwise equipped as required by said statute.

G.S. § 20-134 provides: "Whenever a vehicle is parked or stopped upon a highway, whether attended or unattended during the times mentioned in § 20-129, there shall be displayed upon such vehicle one or more lamps projecting a white or amber light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, and projecting a red light visible under like conditions from a distance of five hundred feet to the rear * * *." This section is inapplicable to a motor vehicle parked in a residential district in a city or town on a street which constitutes no part of the highway system. Neither do the provisions of G.S. § 20-161 apply to parking in such districts. According to the stipulations entered into in the trial below, Kornegay Street does not constitute any part of the highway system.

Therefore, as we construe the pleadings in this case, the question for determination is simply this: Was the parking of the corporate defendant's truck on a residential street in violation of an ordinance of the City of Goldsboro, a proximate cause or one of the proximate causes of plaintiff's injuries?

It is said in Blashfield, Cyclopedia of Automobile Law and Practice, Vol. 4, Part 2, Permanent Edition, Section 2591, page 79, et seq.: "Under the rules stated in the foregoing sections, violations of traffic regulations create liability for injuries proximately caused thereby, but the fact that, while the driver of a motor vehicle is violating a statute or ordinance relating to the rules of the road or use of the street by motor vehicles, injuries are inflicted or sustained, does not create a cause of action for the injuries inflicted, * * * unless such violation was the proximate cause of the injury," citing Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311; Morgan v. Carolina Coach Co., 225 N.C. 668, 36 S.E.2d 263; Ervin v. Cannon Mills, 233 N.C. 415, 64 S.E.2d 431.

It is further said in this section: "Whether a violation of an ordinance or statute is regarded as negligence per se is immaterial in the application of the above rule, as there is the same necessity for the application of the doctrine of proximate cause in an action based on the violation of a statute or ordinance as in the ordinary negligence case, and the rules for determining proximate cause are the same on the issues of negligence at common law and of negligence as the result of failure to observe a statutory duty," citing Taylor v. Stewart, 172 N.C. 203, 90 S.E. 134; Beaman v. Duncan, 228 N.C. 600, 46 S.E.2d 707; Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849.

In Carrigan v. Dover, 251 N.C. 97, 110 S.E.2d 825, this Court pointed out that even though the violation of an ordinance be negligence per se, it must be the proximate cause or one of the proximate causes of the injury in order to be actionable.

The rule is stated concisely in 5A Am. Jur., Automobiles and Highway Traffic, Section 403, at page 480: "In order to predicate liability on the ground of negligence in parking in violation of a statute or traffic regulation, that negligence must have been a proximate cause."

In the case of Ham v. Greensboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180, wherein the defendant violated ordinances of the City of Greensboro by: (1) driving an ice truck without a license; (2) parking the truck at an angle rather than exactly parallel; and (3) backing away from the curb rather than moving forward, this Court said: "All of the decisions of this state since Ledbetter v. English, 166 N.C. 125, 81 S.E. 1066, concur in the view that the violation of an ordinance or of a statute designed for the protection of life and limb is negligence per se. Notwithstanding, the same decisions do not permit recovery for the mere violation of the statute, unless there was a causal relation between the violation and the injury."

It is alleged in plaintiff's complaint that the defendant Warrick, agent, servant and employee of the corporate defendant, carelessly, negligently, and unlawfully parked the corporate defendant's truck upon a paved street a distance from the edge of the pavement in violation of the General Statutes of North Carolina and in violation of the ordinances of the City of Goldsboro. However, the plaintiff introduced in evidence a portion of paragraph 5 of the defendants' answer, as follows: "It is admitted that when the motor scooter on which the plaintiff was riding reached a point on said Kornegay Street in front of the home of Claudie Warrick it collided with a motor truck owned by the defendant Goldsboro Iron & Metal Company, which at the time was parked on the extreme right-hand side of the street with its right rear wheel resting on the curb of the sidewalk."

The plaintiff having introduced the above portion of defendants' answer in evidence, he is bound thereby with respect to the manner in which the truck involved was parked. Meece v. Dickson, 252 N.C. 300, 113 S.E.2d 578.

The evidence in this case is to the effect that it was customary to park cars on the east side of Kornegay Street both in the daytime and at night. Furthermore, plaintiff testified that he was familiar with this practice.

There is a vast difference in leaving an unlighted vehicle parked on the traveled portion of a highway and in parking on a street in a residential area where vehicles are customarily parked. In our opinion, the plaintiff's evidence fails to show that the parking of the corporate defendant's truck on Kornegay Street was the proximate cause or a proximate cause of the plaintiff's injury, and we so hold.

On the other hand, if it be conceded that defendant Warrick was guilty of negligence in parking the corporate defendant's truck on Kornegay Street in violation of the pleaded ordinance of the City of Goldsboro prohibiting such parking in the residential areas of Goldsboro, nevertheless the contributory negligence of the plaintiff is manifest from his own testimony. McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735.

In the last cited case Robert H. McKinnon testified that he ran in a "blinded area" for two or three seconds, at a speed of 35 miles an hour and for a distance of 100 feet—other witnesses put it at 100 yards or 400 feet—when he was completely blinded by the lights of approaching cars and could see nothing in front of him except the right-hand edge of the road. While he was so blinded he ran into the rear of a slowly moving or stalled truck which was being operated without rear lamps as required by G.S. § 20-129. On this evidence Stacy, C. J., speaking for the Court, said: "Both his vision and his prevision seem to have failed him at one and the same time. Such is the stuff of which wrecks are made. The conclusion seems inescapable that the driver of the McKinnon car omitted to exercise reasonable care for his own and his companion's safety, which perforce contributed to the catastrophe. This defeats recovery * * *."

If the plaintiff herein was within 200 feet of the parked truck before the car turned into Kornegay Street, according to plaintiff's own testimony, he could have seen the parked truck. If, however, he was more than 200 feet from the parked truck when he was blinded by the lights of the approaching car, then he traveled more than 200 feet while blinded when he could not and did not see the parked truck, according to his testimony, but "a split second" before he hit it, just as the approaching car passed him. Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; McKinnon v. Motor Lines, supra; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E. 2d 623; Morris v. Jenrette Transportation Co., 235 N.C. 568, 70 S.E.2d 845; Morgan v. Cook, 236 N.C. 477, 73 S.E.2d 296.

The judgment of the court below in granting defendants' motion for judgment as of nonsuit will be upheld.

Affirmed.