Chesson v. Nello L. Teer Co.

72 S.E.2d 407 (1952) 236 N.C. 203

CHESSON
v.
NELLO L. TEER CO.

No. 102.

Supreme Court of North Carolina.

September 24, 1952.

Bailey & Bailey, Plymouth, for plaintiff, appellant.

Rodman & Rodman, Washington, for defendant, appellee.

DENNY, Justice.

The accident complained of occurred in broad daylight. And when the plaintiff's evidence is considered in the light most favorable to him, we do not think it is sufficient to establish actionable negligence on the part of the defendant.

The plaintiff's evidence points unerringly to the fact that he could have seen the barrier on the highway in ample time to have stopped his car before reaching it, if the barrier had not been obscured by another automobile.

What effect then did the conduct of an innocent motorist in obscuring the barrier from plaintiff's view, have upon the rights of the litigants? The late Chief Justice Stacy pointed out what will and what will not constitute insulating negligence under such circumstances, in Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, 811, where he said: "The rule is, that if the original act be wrongful, and would naturally prove injurious to some other person or persons, and does actually result in injury through the intervention of other causes which are not in themselves wrongful, the injury is to be referred to the wrongful cause, passing by those which are innocent. Scott v. Shepherd, 2 W.B1. 892 (Squib Case). But if the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission on the part of another or others, the injury is to be imputed to the last wrong as the proximate cause, and not to the first or more remote cause."

In applying the above rule to the facts in this case, we cannot concede that the placing of a barrier across a highway that is under construction, when such barrier is erected by the contractor for the protection of the traveling public, is within itself a wrongful act, or that such obstruction "would naturally prove injurious to some person or persons." The very presence of another automobile on the highway under the conditions and circumstances detailed by the plaintiff's evidence, called for caution on his part. In fact, he so testified in the trial below: "I had decreased my speed when I saw a car turning around ahead of me. * * * It was backing out from the road that lead around—the detour. * * * that * * * indicated to me that there was some necessity for care on my part. I slowed down. Then after the car got out of my way I accelerated my speed." Even so, it is apparent that he did not exercise reasonable care, under the circumstances, for his own safety.

One who operates an automobile on a public highway, which is under construction or repair, cannot assume that there are no obstructions or defects ahead. 60 C.J.S., Motor Vehicles, § 201(d), page 538 et seq.; Humphrey v. Wayne County, 257 Mich. 398, 241 N.W. 212; Western Union Tel. Co. v. Stephenson, 5 Cir., 36 F.2d 47; Schwartz v. Jaffe, 324 Pa. 324, 188 A. 295; Duke v. Consolidated Gas Co. of N. Y., 244 A.D. 337, 279 N.Y.S. 442. In such instances it is the duty of a motorist to keep his car under such control that it can be stopped within the distance within which a proper barrier ahead can be seen. Western Union Tel. Co. v. Stephenson, supra; Blashfield's Cyclopedia of Automobile Law and Practice, Volume 5, section 3311, page 439. The last cited authority also states in the same section that, "If he (a motorist) is able to stop after seeing a * * * contractor's barrier across a highway, but fails to do so, his contributory negligence will bar his recovery notwithstanding the failure of the contractor to provide statutory signals."

A motorist should exercise reasonable care in keeping a lookout commensurate with the increased danger occasioned by conditions obscuring his view. Blashfield's Cyclopedia of Automobile Law and Practice, Volume 5, section 3318, page 448; 60 C.J.S., Motor Vehicles, § 201(h), page 541; Humphrey v. Wayne County, supra; Eller v. North Carolina R. Co., 200 N.C. 527, 157 S.E. 800; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; and cited cases.

The case of Eller v. North Carolina R. Co., supra, involved a collision between the plaintiff's automobile and one of the defendant's passenger trains. To show negligence on the part of the defendant, the plaintiff, among other things, relied upon the excessive speed of the train and the failure to give any warning by bell or otherwise of its approach. Another element of negligence insisted upon by the plaintiff was that a car crossing the track at the time he arrived obscured his view. The Court said [200 N. C. 527, 157 S.E. 802]: "Such obstruction, however, was not due to any fault of the railroad company, and, indeed, was a circumstance wholly beyond its control." See Lee v. Southern R. Co., 180 N.C. 413, 105 S.E. 15, and Moore v. Atlantic Coast Line R. Co., 203 N.C. 275, 165 S.E. 708.

Likewise, in the case of Murray v. Atlantic Coast Line R. Co., supra, the plaintiff, an employee of the defendant railroad, and other of its employees, were engaged in repairing a grade crossing. To protect the workmen, the railroad had placed a dump car as a barricade on the concrete portion of the highway. As a Mrs. Elliott, a codefendant, approached the crossing, she overtook another car traveling in the same direction and on the same side of the highway. She speeded up to pass the car ahead and just at that moment it turned to the left to go around the barricade. Then Mrs. Elliott kept straight ahead, not seeing the barrier until too late to stop. She ran into the barrier and seriously injured the plaintiff. It was contended there, as in the instant case, that the defendant railroad company failed to provide sufficient warning to travelers on the highway that there was a barrier at the crossing. It was also argued that Mrs. Elliott was prevented by the car ahead from seeing the obstruction which had been placed in the highway by the defendant railroad, and that she did not see it until the car ahead turned to the left, when it was too late for her to stop in time to have averted the accident. This Court held that plaintiff's injury was proximately caused by Mrs. Elliott's failure to exercise ordinary care and to observe the laws of the road in the operation of her automobile, independent of any act of omission of duty on the part of the defendant railroad.

In applying the foregoing principles of law to the facts in this case, it is our opinion, and we so hold, that the negligence of the plaintiff was the proximate cause of his injuries and damage. He was traveling on a highway that he knew was under construction. His guest passenger saw the automobile stop on the highway when they were one-half mile away. The plaintiff drove his car the one-half mile and was within 40 feet of the barrier across the highway as the other car cleared his side of the road. When the car completed its turn, he accelerated his speed although the barrier was in plain view only 40 feet ahead. When he did see the barrier, he applied his brakes but could not stop. As soon as the other car cleared the south lane of the highway he turned left into the detour, lost control of his car, ran off the road on the right-hand side of the detour, broke a cement drain, and the car had such momentum that it not only turned over, but, in his language "turned over and over." It would seem to be another case where the physical facts speak louder than words. Powers v. S. Sternberg & Co., 213 N.C. 41; 195 S.E. 88.

The judgment of the court below is

Affirmed.