Rogers v. Carolina Garage, Inc.

73 S.E.2d 318 (1952) 236 N.C. 525

ROGERS
v.
CAROLINA GARAGE, Inc. et al.

No. 530.

Supreme Court of North Carolina.

November 19, 1952.

Robinson & Jones, Charlotte, Hastings & Booe, Winston-Salem, for Carolina Garage, Inc., defendant, appellant.

C. H. Gover and Helms & Mulliss, Charlotte, for Blythe Bros. Co., defendant, appellee.

DEVIN, Chief Justice.

We think the allegations contained in the cross-complaint of defendant Carolina Garage, Inc. are insufficient to sustain its action for contribution from Blythe Bros. Co. as joint tort-feasor.

It may not be held to constitute actionable negligence that Blythe Bros. Co. parked a motor truck near but not on the highway, even though it was near where other automobiles were likely to enter the highway from a parking site beyond. To hold that parking a truck under these circumstances was sufficient to sustain the imputation of negligence, even though the view of a driver on the highway might be obscured as to the movement of automobiles beyond the highway, would be to impose an obligation on motorists which neither the statutes nor the dictates of reasonable care and precaution would seem to require. Walker v. Illinois Commercial Tel. Co., 315 Ill.App. 553, 43 N.E.2d 412; Bohm v. Racette, 118 Kan. 670, 236 P. 811, 42 A.L.R. 571; Craig v. Western & Southern Indemnity Co., 6 Cir., 119 F.2d 591.

The circumstances here were not such as to impose a duty on Blythe Bros. Co. to warn approaching drivers on the highway. Pender v. National Convoy & Trucking Co., 206 N.C. 266, 173 S.E. 336; Council v. Dickerson's, Inc., 233 N.C. 472,476, 64 S.E.2d 551.

It is not contended, nor would such a position be warranted, that Blythe Bros. Co. was responsible for any negligence on the part of an employee in backing his own automobile after hours from a parking site toward the highway. Nor is it alleged that the automobile of this employee entered into the highway or came in contact with the truck of defendant Carolina Garage, Inc. or the automobile of the plaintiff.

The defendant Blythe Bros. Co. may not be held liable for a negligent breach of duty in failing to foresee that Willie Douglas, the employee referred to, or any other person, would negligently back an automobile toward the highway in such a manner as to cause the driver of an approaching vehicle to turn to the left to avoid an apprehended collision. Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Lee v. Carolina Upholstery Co., 227 N.C. 88, 40 S.E.2d 688.

The ruling of the trial judge in sustaining the demurrer of defendant Blythe Bros. Co. is affirmed.