Bennett v. Young

145 S.E.2d 853 (1966) 266 N.C. 164

Margaret J. BENNETT, Administratrix of the Estate of Commodore Willis Jones,
v.
James H. YOUNG, J. C. Anderson and L. A. Reynolds Company, Jointly and Severally.

No. 693.

Supreme Court of North Carolina.

January 14, 1966.

A. L. Meyland and H. H. Issacson, Greensboro, for plaintiff appellant. Block, Meyland & Lloyd, Greensboro, and Clarence C. Boyan, High Point, of counsel.

Booth, Osteen, Fish & Adams, Greensboro, for defendant appellees J. C. Anderson and L. A. Reynolds Co.

Cooke & Cooke, Greensboro, for defendant appellee James H. Young.

LAKE, Justice.

In reviewing the rulings of the trial judge upon the separate motions of the defendants for judgment as of nonsuit, we are required, as was he, to consider the plaintiff's evidence in the light most favorable to her, resolving all conflicts therein in her favor, drawing therefrom all reasonable inferences favorable to her and disregarding all evidence by the defendants tending to show a situation or a course of action contrary to that shown by the plaintiff's evidence so interpreted. Moss v. Tate, 264 N.C. 544, 142 S.E.2d 161; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338; Ammons v. Britt, 256 N.C. 248, 123 S.E.2d 579. If, when so considered, it is sufficient to support a finding by the jury that one of the defendants, or a person for whose negligent act or omission such defendant is responsible, was negligent and that such negligence was a proximate cause of the death of the plaintiff's intestate, the motion of that defendant for judgment of nonsuit should have been denied, unless the evidence, so interpreted, shows contributory negligence by the plaintiff's intestate so clearly that no other inference may be reasonably drawn therefrom. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292; Strong, N. C. Index, Negligence, § 26.

The plaintiff's evidence, if believed, as it must be upon this motion, tends to show that her intestate was directed by his employer's superintendent to drive a grade stake at the precise point where he was driving it when struck by the truck. He and the superintendent had been walking together from point to point, the superintendent directing him where to put the respective stakes and the plaintiff's intestate driving them pursuant to such instructions. As each stake was driven they had been walking together to the next location. On this occasion, the superintendent walked on toward the place where the next stake was to be driven before the plaintiff's intestate had finished the driving of the stake at the point behind the truck of the defendant Young. When the superintendent turned to look back he was surprised to find that the plaintiff's intestate was not walking with him. From this it may reasonably be inferred that the plaintiff's intestate was equally unaware of the fact that his superintendent was no longer standing nearby, observing the driving of the stake and the truck behind which he had instructed the plaintiff's intestate to go. Under these conditions we cannot say, as a matter of law, that the plaintiff's intestate was negligent in going behind the truck to drive the stake or in driving it with his back turned toward the truck, which was not moving when he stepped behind it. Whether his doing so under these circumstances was a failure by him to use reasonable care for his own safety, and one of the proximate causes of his injury and death, is a question for the jury, if it reaches the issue of contributory negligence.

Laws, the driver of the truck, was originally made a party defendant to this action. However, he could not be found for the service of summons and the trial of the action proceeded as if he had not been made a party. He was not present at the trial, so the record does not contain any testimony by him as to what he did, or did not do, in the operation of the truck.

It being alleged in the complaint and admitted by Young in his answer that Laws was operating the truck in the course of his employment by Young, Young is responsible for the negligence of Laws, if any, in such operation.

The evidence of the plaintiff, interpreted as it must be upon Young's motion for judgment of nonsuit, tends to show that Laws backed the truck without blowing the horn or giving any other signal of his intent to do so and that the rear view mirrors on each side of the truck would not disclose to Laws what, if anything, was in the area immediately behind the truck, this being the area in which the plaintiff's intestate was driving the stake. Although there is nothing to indicate that Laws actually knew anyone was, or had been, behind the truck, there is evidence that a number of workers were on the construction site and it might be inferred that the presence of one of them at any part of the site could be anticipated from time to time.

In Adams v. Beaty Service Co., 237 N.C. 136, 142, 74 S.E.2d 332, 336, after observing that it is not negligence per se to back an automobile on the highway, Winborne, J., later C. J., said for the Court:

"And while the law does not forbid the backing of an automobile upon the streets and highways, and to do so does not constitute negligence, the driver of an automobile must exercise ordinary care in backing his machine so as not to injury others by the operation, and this duty requires that he adopt sufficient means to ascertain whether others are in the vicinity who may be injured."

In Wall v. Bain, 222 N.C. 375, 379, 23 S.E.2d 330, 333, Seawell, J. observed that backing a motor vehicle upon the highway is "an operation which involved a greater danger than ordinary travel," and that no reasonable person would drive in that manner for any length of time. He then said, for the Court:

"The requirements of prudent operation are not necessarily satisfied when the defendant ``looks' either preceding or during the operation of his car. It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen."

This rule has been quoted with approval many times by this Court. Greene v. Meredith, 264 N.C. 178, 141 S.E.2d 287; Sugg v. Baker, 261 N.C. 579, 135 S.E.2d 565; Kellogg v. Thomas, 244 N.C. 722, 94 S.E.2d 903.

While the foregoing decisions dealt with the operation of motor vehicles upon the public highways, the same principles apply to the operation of such a vehicle elsewhere, such as upon private property whereon a construction project is under way. In Murray v. Wyatt, 245 N.C. 123, 95 S.E.2d 541, the facts were very similar to those in the record now before us. There, an employee of the general contractor was killed when the subcontractor's dump truck backed into him in process of dumping a load of materials at a site maintained for that purpose by the contractor. Motion for judgment of nonsuit was held to have been properly denied, the Court citing Adams v. Beaty Service Co., supra, and saying:

"In view of the evidence that both Murray and the [Jones] truck were in fact directly behind him, it was for the jury, upon all the evidence, to say whether Boyle failed to use due care in backing his truck without first exercising due care to ascertain whether he could do so without striking Murray or the Jones truck. * * * There is little difference between backing a truck when you cannot see what is behind you and in driving forward when blindfolded."

Whether the vehicle is being operated on a public highway or elsewhere, the driver must use the care which a reasonable man would use in like circumstances to avoid injury to another. As Parker, J. said in Greene v. Meredith, supra, "The rule is constant while the degree of care which a reasonably prudent man exercises or should exercise varies with the exigencies of the occasion."

Of course, one driving a motor vehicle in an open field, with no reason to suppose any other person is nearby, is not to be held to the same degree of vigilance in maintaining a lookout, whether proceeding forward or backward, as is one driving upon a heavily traveled highway. But where the motorist has reason to believe that any pedestrians or other vehicles may be in his intended path, he must exercise for their safety the care which a reasonable man would use under the same circumstances, even though he be driving upon private property.

Applying these standards of care and viewing the plaintiff's evidence as we are required to do upon this motion, we are unable to hold, as a matter of law, that Laws used the care of a reasonable man. So considered, her evidence would support a finding that, having notice that some person might be standing or walking in his intended path, Laws put his vehicle in motion and backed it into an area he could not observe, without blowing his horn or giving any other signal. It is, of course, for the jury to determine, in the light of all the evidence, whether Laws actually did use the care which a reasonable man would use under the circumstances then, in fact, prevailing. It is for the jury to determine both what those conditions were and how Laws operated the truck. Its determination must be made in the light of all the evidence, free from the limitations which govern our consideration of it upon a motion for judgment of nonsuit, and in view of the rule that the burden is upon the plaintiff to prove negligence by Laws. The evidence of the plaintiff, if believed is, without more, sufficient to support a finding that Laws failed to use such care and his failure was a proximate cause of the death of the plaintiff's intestate. Therefore, the court erred in granting the motion for judgment of nonsuit in favor of Young, the employer of Laws.

As to the defendant Anderson and the defendant Reynolds a different situation exists. Anderson was the employee of Reynolds, so any negligence by him in the course of his employment would be imputed to Reynolds. However, there was no duty upon Anderson to station a watchman to direct the movement of the trucks unless such duty rested upon Reynolds and fell upon Anderson by virtue of his being Reynolds' superintendent.

Reynolds was the subcontractor performing the grading of the construction site. Laws, the driver of the truck, was not the employee of either Reynolds or Anderson. Laws was employed by Young, an independent contractor hauling the dirt for Reynolds. The work which Young and his employees were doing was not inherently dangerous. It consisted simply of driving a truck into a position where Reynolds could load it with dirt and then driving the truck away to a place designated by Reynolds and dumping the dirt there. It required no precaution other than those incident to any operation of a dump truck. Consequently, Reynolds, for whom this work was being done under the subcontract, would not be liable for the negligence of Laws in the operation of the truck. See: Dockery v. World of Mirth Shows, 264 N.C. 406, 142 S.E.2d 29; Evans v. Rockingham Homes, Inc., 220 N.C. 253, 17 S.E.2d 125; Greer v. Callahan Construction Co., 190 N.C. 632, 130 S.E. 739. Anderson would not be liable for the negligence of Laws, there being no relation of any sort between them.

The plaintiff complains of these defendants on the theory that it was their duty to station a person at or near the excavating and loading machines to direct the movement of the trucks up to and away from this point. Her evidence fails to show that there was a sufficient volume of traffic, vehicular or pedestrian, to make such a director of traffic reasonably necessary. It shows that the trucks followed a regular routine which was apparent to anyone working about the project. A total of approximately seven trucks were engaged in the activity. There were two loading machines. From four to ten minutes were required to load a truck. Thus, assuming the two loading machines worked uniformly, a truck would arrive at the machine and depart approximately each three or four minutes. No other vehicles moved in the area. The public did not enter upon it. Under these circumstances, the plaintiff's evidence fails to show a duty upon Reynolds, the grading contractor, to provide a traffic director. Anderson's duty, in that respect, would be no greater than that of his employer.

The plaintiff's evidence, viewed most favorably to her, shows no breach of any duty owed to her intestate by Anderson or Reynolds. Therefore, the motions of these defendants for judgment of nonsuit were properly allowed.

Affirmed as to the defendants Anderson and L. A. Reynolds Company.

Reversed as to the defendant Young.