Hines v. Brown

119 S.E.2d 182 (1961) 254 N.C. 447

Muriel H. HINES
v.
Rudolph Edward BROWN, Original Defendant, and Wiley Boone, Additional Defendant.

No. 314.

Supreme Court of North Carolina.

April 12, 1961.

Wallace & Wallace, Kinston, for plaintiff, appellant.

White & Aycock, Kinston, for defendant Brown, appellee.

HIGGINS, Justice.

The evidence in this case establishes the original defendant's negligence. Likewise it establishes the plaintiff's responsibility for any negligence on the part of the additional defendant Boone. As her agent, acting in her presence and under her control, his negligence is imputable to her.

The nonsuit must be sustained, if at all, upon the ground that Boone's negligence was one of the proximate causes of the accident, and that no reasonable inference to the contrary may be drawn from the facts in evidence. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Hinshaw v. Pepper, 210 N.C. 573, 187 S.E. 786.

The original defendant's station wagon was parked in plaintiff's lane of traffic without lights, except for a flashlight by which a passenger was examining a road map. Boone saw this light when he was 50 feet away, yet he did not apply his brakes until he was 15 or 20 feet from the rear of the station wagon—too late to avoid the collision. The investigating officer testified that skid marks 12 feet in length stopped at the point of impact. This physical evidence emphasizes Boone's failure to apply brakes until he was too close to the station wagon to stop short or to turn either to the right or left, though ample unobstructed space permitted.

The operator of a motor vehicle in good condition, with good lights and good brakes, on a straight, level and unobstructed highway should have seen a station wagon parked in his driving lane in time to have avoided it by stopping or by driving to the one side or the other. The evidence discloses nothing by way of legal excuse for the failure. The darkness of the night should have increased the driver's vigilance. "The law charges a nocturnal motorist, as it does every other person, with the duty of exercising ordinary care for his own safety (citing cases) * * * ``It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen'." Carrigan v. Dover, 251 N.C. 97, 110 S.E.2d 825, 828.

In fixing driver responsibility, Chief Justice Winborne, in Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804, Justice Parker, in Carrigan v. Dover, supra, Chief Justice Devin, in McClamrock v. White Packing Co., 238 N.C. 648, 78 S.E.2d 749, and Chief Justice Stacy, in Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251, have stated the ground rules. The evidence in the light most favorable to the plaintiff shows her driver, for whose conduct she is responsible, failed to exercise due care in the particulars hereinbefore indicated. The failure was one of the proximate causes of the accident and injury. Contributory negligence appears as a matter of law from the plaintiff's evidence. The judgment of nonsuit is

Affirmed.