Ratliff v. Duke Power Co.

151 S.E.2d 641 (1966) 268 N.C. 605

Howard Thurman RATLIFF, Administrator of the Estate of Howard Thurman Ratliff, Jr.
v.
DUKE POWER COMPANY.

No. 437.

Supreme Court of North Carolina.

December 14, 1966.

Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.

Moore & Rousseau, North Wilkesboro, for plaintiff appellee.

LAKE, Justice.

There is no evidence whatever in the record before us to show that the defendant's truck was operated at a speed greater than was reasonable at or before the collision which caused the death of the plaintiff's intestate, nor is there any indication of any failure to give the signal required by statute of the driver's intent to turn left at the intersection.

The fact that, in the process of turning left, the combination of the truck, trailer and pole blocked both lanes of traffic upon the highway does not constitute proof of negligence or other wrong doing per se. To so hold would mean that a truck towing a 40 foot pole could never make a left turn from a two lane highway.

However, the evidence, viewed in the light most favorable to the plaintiff, is sufficient to support a finding that the red flag attached to the pole was no more than 12 inches square, the statutory minimum, and was so affixed to the pole that it lay partially draped upon the top of the pole so that no more than eight inches of its length hung downward.

G.S. § 20-117 provides:

"Whenever the load on any vehicle shall extend more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of such load, in such position as to be clearly visible at all times from the rear of such load, a red flag not less than twelve inches both in length and width, except that between one-half hour after sunset and one-half hour before sunrise there shall be displayed at the end of any such load a red light plainly visible under normal atmospheric conditions at least two hundred feet from the rear of such vehicle."

The obvious purpose of the statute is to promote the safety of one following such a vehicle upon the highway. Its clear meaning is that during daylight hours a red flag shall be displayed from the end of such projecting load so that there shall be visible to a user of the highway following the vehicle at least 12 inches of the flag's length and 12 inches of the flag's width. The requirement of the statute is not met by draping over the top of the load a red flag of the required dimensions so that only a fringe of it is visible to one following the vehicle upon the highway.

The violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself, otherwise provides, and such negligence is actionable if it is the proximate cause of injury to the plaintiff. Carr v. Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Murray v. Aircraft Corporation, 259 N.C. 638, 131 S.E.2d 367; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273.

In Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733, this Court said that violation of this statute by failure to display at night a light, such as is required thereby, is negligence. The violation of the statute during the daylight hours, by failure to comply with its requirements applicable to such time, must lead to the same result. It is all the more imperative that the flag be displayed so as to catch the eye of the following motorist when the projecting load is a long narrow object, such as a utility pole being towed lengthwise along the highway. Without such a warning device, all that is visible to the following motorist is the end of the pole, which is but a few inches in diameter and usually of a color not easily seen against the surface of a black-top highway or the rear of a towing vehicle.

G.S. § 20-116 imposes maximum limits upon the dimensions, including length, of vehicles and combinations of vehicles which may be lawfully operated upon the highways of this State without a special permit, issued pursuant to G.S. § 20-119. However, G.S. § 20-116(e) provides that this length limitation "shall not apply to vehicles operated in the daytime when transporting poles." Thus, it was not unlawful, or negligence per se, for the defendant to transport this 40 foot pole along the highway or to make a left turn at an intersection of highways.

In making a left turn, a driver of a motor vehicle is required by G.S. § 20-154 to "see that such movement can be made in safety" and to give the specified signal of his intent to turn. G.S. § 20-154; Farmers Oil Company v. Miller, 264 N.C. 101, 141 S.E.2d 41. It is not necessarily enough, however, to absolve him from negligence that he looked and gave the statutory signal. A driver must always use the care which a reasonable man would use under like circumstances. The care which is reasonable in making a left turn at an intersection depends, in part, upon the nature and dimensions of the vehicle, or combination of vehicles, to be turned and of the load, if any, projecting from the rear thereof. When the turning vehicle is drawing behind it a 40 foot pole, it is obvious that a left turn at a right angle will involve some swinging of the end of the pole in an are through part of the intersection. Evidence of such a turn with such a load is sufficient to permit, though not to require, the jury to find that reasonable care for the safety of other users of the highway demands the stationing of some person at the intersection to stop traffic which may otherwise be imperiled by the turn.

The evidence offered by the plaintiff, interpreted in the light most favorable to him, as is required in a motion for judgment of nonsuit, is sufficient to support, though not to require a finding that the defendant was negligent and that such negligence was the proximate cause, or one of the proximate causes of the collision and of the death of the plaintiff's intestate.

A judgment of nonsuit may not be entered in an action for wrongful death on the ground of contributory negligence by the deceased, unless the plaintiff's evidence, considered in the light most favorable to him, establishes negligence by the deceased and that such negligence was one of the proximate causes of the collision so clearly as to admit of no other reasonable conclusion. Young v. Baltimore & O.R.R., 266 N.C. 458, 146 S.E.2d 441; Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Pruett v. Inman. 252 N.C. 520, 114 S.E.2d 360.

The record discloses that no witness saw the automobile of the deceased until it was within five feet of the end of the pole. There is, therefore, no direct evidence as to its speed or as to the manner of his driving. G.S. § 20-152 forbids the driver of a motor vehicle to follow another vehicle more closely than is reasonable and prudent, and a violation of this statute is negligence per se. Hamilton v. McCash, 257 N.C. 611, 127 S.E.2d 214. However, though the mere fact of a collision with a vehicle furnishes some evidence of a violation of this statute, or of failure to keep a proper lookout, Burnett v. Corbett, 264 N.C. 341, 141 S.E.2d 468, the mere proof of a collision with a preceding vehicle does not compel either of these conclusions. It merely raises a question for the jury to determine.

Evidence of the distance traveled after the collision by the automobile of the deceased is to be considered by the jury upon the question of the speed of his vehicle at the moment of the collision. The evidence in this record is not, however, sufficient to compel the conclusion that the deceased was driving at a speed in excess of that which was reasonable under conditions known to him, or which should have been known to him. The evidence shows that in the collision the pole smashed through the windshield and went on through the car, back to the rear seat. The car was thus impaled upon the end of a 40 foot pole which was then in the process of swinging through a 90 degree arc in the general direction of the car's previous travel. The reasonable inference from the evidence is that the driver of the car was instantly incapacitated, if not instantly killed. It would be a question for the jury to determine as to whether the continued forward progress of the deceased's car and its turning back toward the west were due to his speed prior to the collision, or to its being impaled upon and swung forward and around by the pole.

The defendant's exception to the denial of its motion for judgment of nonsuit cannot, therefore, be sustained either upon the issue of negligence or upon the issue of contributory negligence.

Turning to the exceptions by the defendant to the charge of the court to the jury, we find that the learned judge below instructed the jury as follows:

"The plaintiff alleges * * * that this pole and the trailer and the truck were longer than is provided by law, and that no special permit to allow the driving or the operation of a rig so long as this was exhibited or was used; so the plaintiff has alleged that this amounted to negligence on the part of the Duke Power Company in the operation, and that was a proximate cause of this collision, this accident."

Again, the court instructed the jury:

"The plaintiff says and contends that this rig was in excess of 55 feet in length and that under the law that no person is supposed to have any rig of any kind out on the highway longer than 55 feet long, without a special permit, and that the defendant was negligent in not having that on this occasion."

Once more, the court instructed the jury:

"Now, the plaintiff says and contends * * * that the plaintiff [sic] had not secured a permit as required in General Statute 20-119, which says that special permits shall be obtained when a vehicle is excessive in size or weight, and that this one was longer than was provided by law; and so the plaintiff says and contends that the defendant was in violation of those statutes and that this was a proximate cause of this collision and what took place."

There is in the charge no suggestion that such contention by the plaintiff as to the law was erroneous. At no point in the charge did the court instruct the jury that G.S. § 20-119 has no application to this case since G.S. § 20-116(e) exempts from the length limitations vehicles towing poles in the daytime. It is prejudicial error for the court, in its instructions to the jury, to make, even in the form of stating a contention of a party, an erroneous statement of the law applicable to an issue in the case without correcting such error. It would, of course, be preferable for the court, in stating the contentions of the parties, to limit such statement to their respective contentions as to the facts and to state only the court's view of the legal principles applicable to such factual situation.

The court also instructed the jury:

"Now, members of the jury, on this first issue the Court charges you that if you are satisfied from this evidence and by its greater weight * * * or if you are satisfied from this evidence and by its greater weight that he [the defendant's driver] failed in making the turn to make it as provided by statute in going out to the center before making the turn, and if you are further satisfied from this evidence and by its greater weight that such negligence or such violation of either of these statutes on the part of the defendant was the proximate cause or a proximate cause, that is a cause without which the collision would not have occurred, then it would be your duty to answer the first issue YES." (Emphasis added.)

There are three errors in this instruction. First, there is no evidence whatever in the record to show that the driver of the truck cut the corner at the intersection, and the jury should not have been permitted to decide the first issue on such an assumption. Second, if he did so, it could not have been a proximate cause of the collision, since the plaintiff's evidence shows clearly that it occurred while the end of the pole and his intestate's automobile were in the eastbound lane of Highway 268. Third, the definition of a proximate cause, here given, is incorrect.

An event which is a "but for" cause of another event—that is, a cause without which the second event would not have taken place—is not, necessarily, the proximate cause of the second event. While one event cannot be the proximate cause of another if, had the first event not occurred, the second would have occurred anyway, Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876, the reverse is not necessarily true. A "but for" cause may be a remote event from which no injury to anyone could possibly have been foreseen. Foreseeability of some injury from an act or omission is a prerequisite to its being a proximate cause of the injury for which the plaintiff seeks to recover damages. Nance v. Parks, 266 N.C. 206, 146 S.E.2d 24.

The learned judge had, in an earlier portion of his charge, correctly defined proximate cause. However, this subsequent instruction, related as it was to a specific and final summation of what the jury must find in order to answer the first issue in the plaintiff's favor, was reasonably calculated to substitute in the mind of the jury the inaccurate definition of proximate cause for the correct definition previously given.

Finally, the court also instructed the jury:

"If you are satisfied from this evidence and by its greater weight, that * * * or that the defendant had not complied with the requirements of the statute to obtain a proper permit for the length of the rig that was being driven, the Court charges you that if you are satisfied from this evidence and by its greater weight that such failure to comply with either of those statutes amounted to negligence, that that failure was such a failure as a reasonable and prudent man would not have been guilty of under the same and similar circumstances, and if you are further satisfied from this evidence and by its greater weight that such failure was a proximate cause, that is a cause without which the collision would not have occurred, then it would be your duty to answer the first issue YES." (Emphasis added.)

For the reasons above mentioned, this instruction is erroneous. It incorrectly states the law with reference to the defendant's need for a permit in order to operate this combination of vehicles on the highway, and it incorrectly defines proximate cause.

The defendant's assignments of error with reference to these portions of the court's instructions to the jury must be sustained. Consequently, the defendant is entitled to a new trial.

New trial.