Wilson v. Central Motor Lines, Inc. , 230 N.C. 551 ( 1949 )

WiNBORNE, J.

The question here is whether the trial court erred in its ruling denying defendants’ motions for judgment as in case of nonsuit. Considered in the light most favorable to plaintiffs, the evidence offered on the trial in Superior Court, as shown in the case on appeal, as it relates to the cases of H. G. Wilson and Susan Ann Wilson, passengers in Glenn A. Wilson’s automobile, dictates a negative answer, but as it relates to the case of Glenn A. Wilson, the driver of his automobile, an affirmative answer.

In order to make out a case of actionable negligence a plaintiff must show that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed to plaintiff, under the circumstances in which they were placed; and, that such negligent breach of duty was the proximate cause, or one of the proximate causes of the injury, that is, a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84.

In this connection, G.S. 20-161 (a), pertaining to the stopping of vehicles upon the highways outside of .business and residential districts, provides “that in the event that a truck, trailer or semi-trailer is disabled upon the highway that the driver of such vehicle shall display, not less than two hundred feet in the front' or rear of such vehicle, a warning signal; that during the hours from sunup to sundown a red flag shall be displayed, and after sundown red flares or lanterns. These signals shall be displayed as long as such vehicle is disabled upon the highway.”

Applying these principles and the provisions of the statute to the case in hand, the evidence is sufficient to take the case to the jury as to failure of defendants in tbe performance of the duty required of them under the circumstances of this case, and as to its causal relation to the injuries of which complaint is made. See Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740.

But the plaintiff Glenn A. "Wilson, who was driving his automobile at the time it collided with the disabled truck of defendants, had another hurdle to surmount, and on it he trips and goes down. The evidence of plaintiffs, even this plaintiff’s own testimony, clearly and unmistakably shows that he was negligent in “outrunning his lights,” or in failing to keep a proper lookout, and that such negligence on his part was a contributing cause of the collision. Weston v. R. R., 194 N.C. 210, 139 S.E. 237; Beck v. Hooks, 218 N.C. 105, 10 S.E. 2d 608; Allen v. Bottling Co., 223 N.C. 118, 25 S.E, 2d 388; Caulder v. Gresham, 224 N.C. 402, 30 S.E. 2d 312; Tyson v. Ford, 228 N.C. 778, 47 S.E. 2d 251; Bus Co. v. Products Co., 229 N.C. 352, 49 S.E. 2d 623; Cox v. Lee, ante, 155, 52 S.E. 2d 355; Brown v. Bus Lines, ante, 493.

In Allen v. Bottling Co., supra, this Court cites the darkness of night as a condition a motorist is required to take into consideration in regulating his speed “as may be necessary to avoid colliding with any person, vehicle, or other conveyance,” — then Section 103, Chap. 407, P.L. 1937, now G.S. 20-141, and held, as had been done in many previous cases cited, that he, the motorist, “must operate his automobile at night in such manner and at such speed as will enable him to stop within the radius of his lights.” To the same effect are the holdings in Tyson v. Ford, supra; Cox v. Lee, supra; and Brown v. Bus Lines, supra.

Moreover, in Tyson v. Ford, supra, a case similar in factual situation to the one in hand, Stacy, C. J., writing for the Court, had this to say: “It is true that the driver of the Tyson car was not bound to foresee or to anticipate that an unlighted truck would be left standing on the traveled portion of the highway ahead of him without flares or other signs of danger, but this did not relieve him of the necessity of keeping a proper lookout and proceeding as a reasonably prudent person under the circumstances. 'While the plaintiff had the right to assume that other motorists would not obstruct the highway unlawfully, and would show the statutory lights if they stopped, he could not for that reason omit any of the care that the law demanded of him.’ Steele v. Fuller, 104 Vt. 303, 158 Atl. 666.”

To like effect are these cases: Bus Co. v. Products Co., supra; Cox v. Lee, supra; and Brown v. Bus Lines, supra.

Pertinent to these principles the testimony of this plaintiff shows that he had good lights on his car; that they were on full; that they shone ahead about 150 feet, — well enough to see an object ahead; that there was a heavy fog, but that he could see 150 feet ahead; that though he says he was keeping a lookout, be bad not seen any obstruction on tbe highway prior to tbe collision; that he was driving 35 miles per hour; and that be does not think be made any effort to slacken bis speed. Moreover, be does not say that tbe lights of tbe approaching automobile blinded him.

This evidence brings this plaintiff’s case within tbe line of decisions listed by Stacy, G. J., in Tyson v. Ford, supra, in which contributory negligence has been held as a matter of law to bar recovery. We incorporate these cases here by reference. To like effect are these later cases: Bus Co. v. Products Co., supra; Cox v. Lee, supra; and Brown v. Bus Lines, supra.

It is sufficient to defeat recovery if plaintiff’s negligence is one of the proximate causes of the injury. It need not be the sole proximate cause. Beck v. Hooks, supra; Tarrant v. Bottling Co., 221 N.C. 390, 20 S.E. 2d 565; Austin v. Overton, 222 N.C. 89, 21 S.E. 2d 887; Tyson v. Ford, supra

Defendants also assign as error the failure of the court to charge the jury on insulated negligence. In view of the pleadings, it may be fairly doubted that insulated negligence was before the court. But if it were, the charge as given would seem to be sufficient as to whether the negligence of Glenn A. Wilson was the sole proximate cause of the injuries of which the plaintiffs H. G. Wilson and Susan Ann Wilson complain. Moreover, the portion of the charge assailed for lack of clarity, is sufficient to withstand the attack.

After full consideration of all assignments of error, we find in the judgments in favor of H. G. Wilson and Susan Ann Wilson

No error.

But the judgment in favor of Glenn A. Wilson is

Reversed.