Conard v. Miller Motor Express, Inc.

144 S.E.2d 269 (1965) 265 N.C. 427

Thelma C. CONARD, Administratrix of the Estate of Robert Lee Conard, Deceased,
v.
MILLER MOTOR EXPRESS, INC.

No. 192.

Supreme Court of North Carolina.

October 13, 1965.

Henry M. Whitesides, Gastonia, for plaintiff appellant.

Mullen, Holland & Harrell, by James Mullen, Gastonia, for defendant appellees.

HIGGINS, Justice.

This cause grew out of a rear-end motor vehicle collision in South Carolina. The substantive law of that State controls. The procedural law of North Carolina controls. Childress v. Johnson Motor Lines, 235 N.C. 522, 70 S.E.2d 558.

The plaintiff's counsel argues here that the evidence made out a case of actionable negligence under the South Carolina law in that it shows the defendant's agent, King, was operating its tractor-trailer unit on U. S. Highway 85 in South Carolina at a speed of 30-35 miles per hour at a place where the minimum speed for motor vehicles had been established at 40 miles per hour. The evidence is sufficient to disclose that the South Carolina Highway Authorities had posted notice of a 40-mile per hour speed limit at the place where the accident occurred. However, the statute, § 46-372, South Carolina Code, under which the Highway authorities posted the minimum, carries an exception which makes the minimum inapplicable under the circumstances disclosed on this occasion.

"No person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation or in compliance with law. (emphasis added) Whenever the Department determines on the basis of an engineering and traffic investigation that slow speeds on any part of a State highway consistently impede the normal and reasonable movement of traffic, the Department may determine and declare a minimum speed limit below which no person shall drive a vehicle, except when necessary for safe operation or in compliance with law, when appropriate signs giving notice thereof are erected along the part of the highway for which a minimum speed limit is established." (emphasis added)

The plaintiff's evidence discloses that the blow-out on one of the dual wheels of the defendant's unit occurred at a place where the shoulder space (on a fill) equaled the trailer width of about eight feet. King, the driver, testified he had insufficient room to take off a wheel and make repairs. One of the plaintiff's witnesses, a transportation expert, stated that standard procedure required that the unit be driven to a place of safety (at the foot of the hill) for the repairs and that safety required that speed should not exceed 30-35 miles per hour because the one tire carrying the load intended for two might blow out because of the heat generated by the extra weight it carried. Exactly this situation is taken into account by the provision of the statutory limitation: "[E]xcept when reduced speed is necessary for safe operation." The minimum speed, therefore, must give way to the superior necessity for safe driving.

The stated objection of the South Carolina Uniform Act is to prevent such slow speeds as "impedes the normal and reasonable movement of traffic." The purpose is not to require the driver of a partially disabled truck to surrender the road at all events to a following truck driver who is in a hurry. The Supreme Court of South Carolina, in Bell v. Atlantic Coast Line Railroad, 202 S.C. 160, 24 S.E.2d 177, has stated the rule:

"An action for negligence based upon an alleged violation of a statute or ordinance cannot be maintained where it appears that the statute or ordinance was enacted or ordained for a purpose wholly different from that of preventing the injury of which complaint is made. To afford a right of action for injury from the violation of a statute or ordinance the complainant's injury must have been such as the statute or ordinance was intended to prevent. If none of the consequences which the enactment was designed to guard against have resulted from its breach, such a breach does not constitute an actionable wrong, even though some other injurious consequence has resulted. It is not enough for a plaintiff to show that the defendant neglected a duty imposed by statute and that he would not have been injured if the duty had been performed. He must go further and show that his injury was caused by his exposure to a hazard from which it was the purpose of the statute to protect him."

For the reasons herein discussed, we hold the plaintiff's evidence fails to make out a case of actionable negligence under South Carolina law. The judgment of nonsuit is

Affirmed.