Meece v. Dickson

113 S.E.2d 578 (1960) 252 N.C. 300

Calvin Grady MEECE
v.
John Henry DICKSON, Jr. (and C. Walter Allen appointed Guardian ad litem by the court).

No. 89.

Supreme Court of North Carolina.

April 6, 1960.

James W. Regan, Oscar Stanton, Asheville, for plaintiff appellant.

Meekins, Packer & Roberts, Asheville, for defendant appellee.

WINBORNE, Chief Justice.

Plaintiff assigns as error the ruling of the trial court in granting defendant's motion for judgment as of nonsuit.

In this connection it is appropriate to refer to two statutes, G.S. § 20-161 and G.S. § 20-134, each in pertinent part pertaining to the operation of motor vehicles upon the highways in this State.

G.S. § 20-161 declares "(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway: Provided, in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in both directions upon such highway:

"Provided further (not pertinent here) * * *

"Provided further that in the event that a truck, trailer or semi-trailer be disabled upon the highway that the driver of such vehicle shall display, not less than two hundred feet in the front and 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 warning signals shall be displayed as long as such vehicle is disabled upon the highways."

(b) Not pertinent here.

And (c) declares that "The provisions of this section shall not apply to the driver of any vehicle which is disabled while on the paved or improved or main traveled portion of a highway in such manner and to such an extent that it is impossible to avoid stopping and temporarily leaving such vehicle in such position." (Emphasis supplied)

To "park" means something more than a mere temporary or momentary stoppage on the highway for a necessary purpose. Stallings v. Buchan Transportation Co., 210 N.C. 201, 185 S.E. 643. Hence in Skinner v. Evans, 243 N.C. 760, 92 S.E.2d 209, the Court held that the temporary stopping of the automobile upon the highway under the circumstances there portrayed was not violative of the provisions of G.S. § 20-161(a) as amended pertaining to stopping on a highway. See among other cases Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Leary v. Norfolk Southern Bus Corp., 220 N.C. 745, 18 S.E.2d 426; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Morgan v. Carolina Coach Co., 225 N.C. 668, 36 S.E.2d 263; Morris v. Jenrette Transportation Co., 235 N.C. 568, 70 S.E.2d 845.

Moreover, G.S. § 20-161 has no reference to a mere temporary stop for a necessary purpose where there is no intent to break the continuity of travel. Royal v. McClure, 244 N.C. 186, 92 S.E.2d 762. See also Basnight v. Wilson, 245 N.C. 248, 96 S.E.2d 699.

Indeed plaintiff offered in evidence an uncontradicted extrajudicial declaration of defendant that the defendant's automobile was on the highway in disabled condition. In so doing plaintiff is bound thereby. Sowers v. Marley, 235 N.C. 607, 70 S.E.2d 670.

Furthermore, G.S. § 20-134 provides that "Whenever a vehicle is parked or stopped upon a highway, whether attended or unattended during the times mentioned in (G.S.) § 20-129, there shall be displayed upon such vehicle one or more lamps projecting a white light visible under normal atmospheric conditions from a distance of five hundred feet to the front of such vehicle, and projecting a red light visible under like conditions from a distance of five hundred feet to the rear * * *." Thus it is seen that this section is inapplicable unless there be a parking in violation of G.S. § 20-161.

In the light of the pleadings and the evidence offered by plaintiff it would seem that plaintiff exculpates defendant from negligence in respect of these statutes.

It appears that defendant's automobile was in disabled condition and was on the highway for only a few minutes before plaintiff ran head-on into the rear of it on a section of highway susceptible of being characterized as a straightaway, that is, straight for more than four-tenths of a mile.

The judgment is

Affirmed.