McCall v. Dixie Cartage & Warehousing, Inc.

158 S.E.2d 72 (1967) 272 N.C. 190

Leola Tucker McCALL, Administratrix of the Estate of Luther L. McCall, Deceased
v.
DIXIE CARTAGE & WAREHOUSING, INC., and Earl T. Stone.

No. 279.

Supreme Court of North Carolina.

December 13, 1967.

Kennedy, Covington, Lobdell & Hickman, by Hugh L. Lobdell, Charles V. Tompkins, Jr., Charlotte, for defendant appellants.

Hedrick, McKnight & Parham, by Philip R. Hedrick, Charlotte, for plaintiff appellee.

HIGGINS, Justice.

The defendants, by proper motions, challenged the sufficiency of the evidence to go to the jury on plaintiff's specifications of negligence. The defendants conditionally pleaded plaintiff's contributory negligence. However, the defendants did not offer evidence. The plaintiff's evidence does not establish contributory negligence as a matter of law. Doubtful it is whether the evidence was sufficient to permit the jury to consider contributory negligence. However, since plaintiff was successful before the jury, the submission of the issue was not prejudicial.

The evidence disclosed that plaintiff's intestate was at work where he had a right to be. The defendant Stone knew of intestate's position down the incline from the tractor where its unguarded movement would be likely to result in death or serious injury. Without taking precaution to set the hand, or emergency, brakes on the tractor, and without placing in front of its wheels blocks of wood (chocks) provided by the Pipe Company for that purpose, Stone left the tractor with the gear lever apparently in reverse, without taking the trouble to ascertain the condition of the coupling mechanism as a result of his efforts to break it loose by the rear movement of the tractor. He must have anticipated the movement would or might uncouple the vehicles. He assumed, negligently we think, they were still securely joined together. It was his duty, in view of the danger, to investigate and see if the clamps, or claws, still held the pin securely in place, or if the pin was out, or was hanging by a thread. Bennett v. Young, 266 N.C. 164, 145 S.E.2d 853; Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40.

Failure to set the emergency brakes on a motor vehicle parked on an incline, where its unattended movement may involve danger to persons or property, is or may be evidence of negligence, depending upon the circumstances. Arnett v. Yeago, 247 N.C. 356, 100 S.E.2d 855; National Spinning Co. v. McLean Trucking Co., 263 N.C. 807, 140 S.E.2d 534. The evidence is plenary the vehicle started of its own motion from the exact position in which Stone left it. According to Stone's admission, on his adverse examination, the air brakes were cut off. He did not remember setting the emergency brake. He admitted he did not place blocks under the wheels. "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." Bennett v. Young, supra; Stephens v. Southern Oil Co. of North Carolina, Inc., 259 N.C. 456, 131 S.E.2d 39.

One who fails to take safety precautions in parking a vehicle on a highway is guilty of a criminal offense. G.S. § 20-124(b); G.S. § 20-126; G.S. § 20-163. The violation of these and other safety statutes is negligence, per se, unless the statute expressly provides otherwise. G.S. § 20-140.1 provides: "Any person who shall operate a motor vehicle over any driveway * * * or upon grounds or premises * * * providing parking space for customers * * * without due caution * * * or in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving." The section is cited for the purpose of indicating that care must be exercised in places of danger otherwise than upon the public highway.

Finally, the defendants contend the Court should award a new trial for errors in the charge, if it should conclude the evidence is sufficient to survive the motion for nonsuit. The parts of the charge to which the defendants take exception are designed and are included and bracketed A to A, B to B, C to C, and D to D. We quote the part of the charge out of which the exceptions are taken:

"* * * If the plaintiff, that is, Mrs. McCall, the Administratrix of Mr. McCall, the deceased, has satisfied you, the jury, from the evidence and by its greater weight, that the defendant, Earl T. Stone, one of the defendants and agent of the corporate defendant, parked the tractor-trailer in the dock on the property of the Charlotte Pipe and Foundry Company, and then after attempting to disengage the tractor from the trailer and failing to do so, (A) left the tractor-trailer with the tractor on an incline without setting the handbrake (A)

* * * * * *

or (B) taking such reasonable precautions as an ordinarily prudent person would do under similar circumstances to prevent the rolling of the tractor down the incline; (B)

* * * * * *

or (C) if the plaintiff has satisfied you by the evidence and by its greater weight that the defendant, Earl T. Stone, at the time and place in question failed to operate this motor vehicle in such a manner as an ordinarily prudent person would do under the same or similar circumstances and when charged with a like duty; (C)

* * * * * *

or (D) if she has satisfied you from the evidence and by its greater weight, that Mr. Stone, one of the defendants and agent of the corporate defendant, at the time knew, that is, had actual knowledge of some defect or defects in the tractor which might cause it to become disengaged and roll down; or if in the exercise of ordinary care he knew, or should have known of such defects and failed to correct them, and went off and left the tractor and it later rolled down the incline; (D)

* * * * * *

the court instructs you that if the plaintiff has satisfied you by the evidence and by its greater weight of any one or more of these stated facts, that would constitute negligence on the part of these defendants. * * *"

The objection to the charge involved only alleged acts of negligence. Otherwise, there was no objection. The charge followed the theory of the trial. The allegations of the complaint raised the issues. The evidence was sufficient to go to the jury, to require the charge on them, and to support the findings. When read contextually, as it must be, it is unobjectionable. Griffin v. Watkins, 269 N.C. 650, 153 S.E.2d 356.

We have examined all the cases cited in the appellants' carefully prepared and documented brief. The cases cited and relied on are distinguishable from the case at bar. Especially, the appellants insist the failure to set the handbrakes and the failure to chock the wheels of the tractor are not sufficient acts of negligence to permit the Court to submit them to the jury. Under the circumstances detailed by the evidence in this case, and for the reason heretofore assigned, we think the evidence of negligent acts was amply sufficient to go to the jury and sustain the finding of negligence. Fuller v. Magatti, 231 Mich. 213, 203 N.W. 868; Fone v. Elloian, 297 Mass. 139, 7 N.E.2d 737; Glaser v. Schroeder, 269 Mass. 337, 168 N.E. 809.

The exceptive assignments do not disclose any reason why the verdict and judgment should be disturbed.

No error.