Smith v. City of Kinston

105 S.E.2d 648 (1958) 249 N.C. 160

Cecil Norman SMITH
v.
CITY OF KINSTON, North Carolina, a municipal corporation.

No. 305.

Supreme Court of North Carolina.

November 19, 1958.

Wallace & Wallace, William F. Simpson, Kinston, for plaintiff appellant.

Sutton & Greene, Kinston, for defendant appellee.

WINBORNE, Chief Justice.

Passing without deciding the question as to whether defendant was negligent as alleged in the complaint, it is manifest from the evidence that plaintiff failed to exercise due care at the time and under the circumstances of his injury, and that such failure on his part contributed to, and was a proximate cause of his injury and damage. It need not be the sole proximate cause. It is sufficient to defeat recovery if plaintiff's negligence is one of the proximate causes of the injury. Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783, and many other cases.

A hurricane is defined as a storm of great violence or intensity, of which the particular characteristic is the high velocity of the wind. A hurricane is properly a circular storm in the nature of a cyclone. Black's Law Dictionary.

And it is a matter of general knowledge that "Hurricane Hazel" was of great and violent proportions, wreaking destruction upon buildings, houses, and trees throughout the area in which it occurred as hereinabove related. This is a fact of which the Court may properly take judicial notice.

"Courts take judicial notice of subjects and facts of common and general knowledge." See Dowdy v. Southern R. Co., 237 N.C. 519, 75 S.E.2d 639, 644, and cases cited.

In this connection the evidence in case in hand shows that plaintiff resided at Grifton, which is in North Carolina, eleven miles from the city of Kinston. And the evidence is that he was out with friends on the night before the accident. Hence it may be fairly inferred that he knew of the hurricane and of the devastation wrought by it. And with this knowledge at the time of the accident in question, he was driving his automobile at thirty miles per hour with lights dimmed to such an extent that he did not see an obstruction of the size of a tree two feet in diameter at the trunk in the street on his line of travel, when his evidence shows there was nothing to prevent him from seeing. Moreover it appears that the lights of the city which had been put out of commission by the hurricane had not been restored to service. Indeed, there was no other traffic on the street.

Under these extraordinary circumstances, the evidence offered by plaintiff clearly shows that he was not exercising proper care for his own safety.

And it is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep a reasonably careful lookout and to keep same under proper control. Marshall v. Southern R. Co., 233 N.C. 38, 62 S.E.2d 489. See also Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884 in respect to the statute G.S. § 20-129 and G.S. § 20-131, pertaining to requirements as to headlights.

For reasons stated the judgment as of nonsuit entered below is

Affirmed.

PARKER, J., not sitting.