White v. Cason

Denny, J.

A careful consideration of all the evidence adduced in the trial below leads us to the conclusion that the negligence of the defendant Cason, the driver of the automobile involved in the accident, was the sole proximate cause of the collision and the consequent injuries to the plaintiff. Montgomery v. Blades, 222 N.C. 463, 23 S.E. 2d 844; Baker v. R. R., 205 N.C. 329, 171 S.E. 342.

In Baker v. R. R., supra, under a factual situation similar to that in the present case, the driver of the car fell asleep and ran his car into the center column of an overhead railroad bridge, injuring himself and killing his invited guest passenger, Heber C. Baker. Actions were brought against the defendant railroad for the wrongful death of Baker and for the driver’s personal injuries. The cases were consolidated for trial, and judgment as of nonsuit was entered. The plaintiffs appealed.

Stacy, C. J., speaking for the Court, said: “That the driver of the •automobile, who fell asleep and ran his car into the center post, injuring himself and killing his companion, cannot recover is too plain for debate. * * * He was not driving along a street which abruptly terminated in a river without barricade or lights * * Nor was he unfamiliar with the road. There are none so blind as those who have eyes andi will not see. * * *

“It is equally clear, we think, that the negligence of the driver was the sole, proximate cause of plaintiff’s intestate’s death. (Citations omitted)”

The writer of the opinion quoted with approval from the case of Becker v. Ill. Cent. R. Co., 147 So. 378, in which, among other things, it was said: “ ‘It must 'be conceded that, if there had been no center pier there could have been no collision therewith, but it does not follow that, because there was a pier, its presence can be said to have been the proximate cause of the collision. * * *’ ”

If it be conceded that the corporate defendants were negligent in the construction and maintenance of the supporting pillars in the center of Northwest Boulevard, which is not so decided, we hold that such negligence was passive and was insulated by the intervention of the active negligence of Henry Berry Cason, the driver of the automobile in which the plaintiff was riding at the time of the collision. Montgomery v. Blades, supra; Haney v. Lincolnton, 207 N.C. 282, 176 S.E. 573; Baker v. R. R., supra; Hinnant v. R. R., 202 N.C. 489, 163 S.E. 555; Herman v. R. R., 197 N.C. 718, 150 S.E. 361.

We think the plaintiff’s evidence clearly establishes the fact that the defendant Cason was negligent in the operation of his car in that he failed to see that which he could have seen and ought to have seen, and doubtless would have seen, if he had been exercising that degree of care required of him by law in the operation of his automobile. Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330.

In the last cited case Seawell, J., in speaking for the Court, said: “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.”

Upon all the evidence, we think it is manifest that the alleged negligence of the corporate defendants was not in law a proximate cause of plaintiff’s injuries. Herman v. R. R., supra.

The judgment below is

Affirmed.

HiggiNS, J., took no part in the consideration or decision of this case.