Bumgardner v. Allison , 238 N.C. 621 ( 1953 )

78 S.E.2d 752 (1953) 238 N.C. 621

BUMGARDNER
v.
ALLISON et al.

No. 307.

Supreme Court of North Carolina.

November 25, 1953.

Theodore F. Cummings, Hickory, for plaintiff, appellee.

Smathers & Shuford, Hickory, and Helms & Mulliss, Charlotte, for defendant appellants.

JOHNSON, Justice.

The evidence adduced below, as it relates to the defendants Fence Company and truck driver George, makes out a clear prima facie case of actionable negligence against these defendants. This, without more, on the basis of the testimony tending to show (1) that the truck was left parked in the nighttime without lights of any kind, in violation of G.S. § 20-134, and also in violation of the ordinance of the City of Hickory adopted pursuant to the provisions of this statute, and (2) that there was a failure to display a red light at the end of the pipes which projected out behind the truck body, as required by G.S. § 20-117. See Barrier v. Thomas, etc., Co., 205 N.C. 425, 171 S.E. 626; Brewer v. Moye, 200 N. C. 589, 157 S.E. 871; Williams v. Frederickson Motor Express Lines, 198 N.C. 193, 151 S.E. 197; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R. 2d 682.

It is also manifest that the evidence adduced below, as it relates to the defendant Barger, is sufficient to make out a prima facie case of actionable negligence as to him. This, upon the theory that the evidence was sufficient to support the inference (1) that he was driving at a speed greater than was reasonable and prudent under conditions then existing, in violation of G.S. § 20-141, Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Wilson v. Central Motor Lines, 230 N.C. 551, 54 S.E.2d 53; Morris v. Jenrette Transport Co., 235 N.C. 568, 70 S.E.2d 845, or (2) that he failed to exercise due care in maintaining a lookout. Marshall v. Southern R. Co., 233 N.C. 38, 62 S.E.2d 489; Adcox v. Austin, 235 N.C. 591, 70 S.E.2d 837.

The decisive question presented by this appeal is whether, as urged by the appellants Fence Company and George, the case should have been nonsuited below as to them on the ground that their negligence was insulated by the intervening negligence of taxi driver Barger, who does not appeal.

The appellants point to the testimony of Officer Teague who said Barger told him that "as he crossed the intersection (of Fifth Street) he * * * was blinded by lights * * * and the next thing he knew something went through the windshield." The appellants insist that the single inference deducible from this evidence, and other supporting evidence offered by the plaintiff, is that Barger became blinded at the Fifth Street intersection, some 300 feet or more from the parked truck, and blindly drove his taxicab on this entire distance through the darkness without slackening his speed or keeping a proper lookout, and crashed into the rear end of the truck when there was more than 20 feet of roadway open on the left for him to have passed in safety. On this hypothesis the appellants urge that the court below erred in not holding as a matter of law that Barger's negligence insulated the negligence of the appellants. Nothing else appearing, this contention would seem to merit serious consideration.

But more appears. On cross-examination, Officer Teague in commenting further on his conversation with taxi driver Barger went on to say: "He (Barger) did not say, ``I was in the intersection,' but said he was somewhere near the intersection. He did not point out one certain place." Also the record discloses that Patrolman Brown, testifying in respect to a conversation he had with Barger, said, in part, that Barger told him: "he was going over this dip and went down the dip to Second Avenue and that an oncoming car met him and blinded him and the next thing he knew something hit him and struck the car." Cross-examination: "Mr. Barger * * * told me * * it was raining at the time and that he was driving 20 to 25 miles per hour. He said he was suddenly blinded by lights of an oncoming car after he went into the dip. The next thing he remembered was something hitting him." (Italics added.)

It thus appears that there is plenary evidence to support the inference that Barger was in close proximity to the truck, rather than at or near the Fifth Street intersection, when blinded by the lights of the on-coming car and that the collision occurred while he was so blinded. It was for the jury, and not for the court, to resolve the discrepancies and dispose of the contradictions in the testimony. Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Childress v. Lawrence, 220 N.C. 195, 16 S.E.2d 842.

We conclude that Judge Moore correctly overruled the appellants' motion for judgment as of nonsuit. The evidence adduced below clearly made out a prima facie case of actionable negligence against the appellants and also against Barger on the theory of concurrent negligence.

Decision here is controlled by the principles illustrated and explained in these cases: Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312; Smith v. Atlantic & Yadkin R. Co., 200 N.C. 177, 156 S.E. 508; Glazener v. Safety Transit Lines, 196 N.C. 504, 146 S.E. 134. See also: McClamrock v. White Packing Co., N.C., 78 S.E.2d 749; Price v. City of Monroe, 234 N.C. 666, 68 S.E.2d 283; Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690; Hall v. Coble Dairies, supra, 234 N.C. 206, 67 S.E.2d 63; Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; West v. Collins Baking Co., 208 N.C. 526, 181 S.E. 551; 5 Am.Jur., Automobiles, Sec. 345; Annotations: 16 A.L.R. 465; 62 A.L.R. 1425.

Another assignment of error urged by the appellants relates to the refusal of the trial court to set aside the verdict on the ground that it is excessive. This motion was addressed to the discretion of the trial court. Caulder v. Gresham, supra, 224 N.C. 402, 30 S.E.2d 312. The evidence below tends to show that the intestate was a strong, healthy girl of more than average ability. Her school teacher, Mrs. James Whitener, testified in part that she "was a very good student. * * * She was an easy child to teach. She could catch on to things. * * * She was respectful and obedient and took part in everything in the school room and on the playground. She was a very happy child and was one of the nicest girls I have ever taught. * * * I considered her above average." The ruling below will be sustained; no abuse of discretion has been made to appear. Poniros v. Nello L. Teer Co., 236 N.C. 145, 72 S.E.2d 9; Hawley v. Powell, 222 N.C. 713, 24 S.E.2d 523; Pruitt v. Ray, 230 N.C. 322, 52 S.E.2d 876.

The remaining exceptions brought forward by the appellants relate to the reception of evidence and the charge of the court. They have been examined with care, but no error sufficient to justify a retrial is disclosed. Simmons v. North Carolina State Highway & Public Works Commission, N. C., 78 S.E.2d 308; Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846; Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342.

The verdict and judgment will be upheld.

No error.