Wilson v. Miller

201 S.E.2d 55 (1973) 20 N.C. App. 156

Kathleen Wright WILSON, Administratrix of the Estate of Bessie H. Wright
v.
Ruth England MILLER and Tom Wright.

No. 7327SC772.

Court of Appeals of North Carolina.

December 12, 1973.

Ramseur & Gingles by Donald E. Ramseur, Gastonia, for plaintiff-appellee.

Carpenter, Golding, Crews & Meekins, by James P. Crews, Charlotte, for defendant-appellant Ruth England Miller.

Hollowell, Stott & Hollowell, by Grady B. Stott, Gastonia, for defendant-appellant Tom Wright.

CAMPBELL, Judge.

Defendant Wright asserts that his motions for directed verdict and judgment notwithstanding the verdict were improvidently denied and that the defendant Miller's actions were the sole proximate cause of the accident. In determining the sufficiency of a plaintiff's evidence to withstand a defendant's motion for directed verdict and for judgment notwithstanding the verdict, "all evidence which supports plaintiff's claim must be taken as true and considered in the light most favorable to plaintiff, giving to plaintiff the benefit of every reasonable inference which may legitimately be drawn therefrom, and with contradictions, conflicts and inconsistencies being resolved in plaintiff's favor." Pergerson v. Williams, 9 N. C.App. 512, 176 S.E.2d 885 (1970); Horton v. Insurance Co., 9 N.C.App. 140, 175 S.E.2d 725 (1970), cert. denied, 277 N.C. 251 (1970). We find that the evidence, considered in the proper light was sufficient to present a jury question.

Defendant Miller also appealed the denial of her motions for directed verdict and judgment notwithstanding the verdict. She contends that she was not in violation of G.S. § 20-161(a) which read in pertinent part at the time in question as follows:

". . . No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway: Provided, in no event shall any person park or leave standing any vehicle, whether attended or unattended, upon any highway unless a clear and unobstructed width of not less than fifteen feet upon the main traveled portion of said highway opposite such standing vehicle shall be left for free passage of other vehicles thereon, nor unless a clear view of such vehicle may be obtained from a distance of two hundred feet in both directions upon such highway: . . ."

Violation of the section is negligence per se. Hughes v. Vestal, 264 N.C. 500, 142 S.E.2d 361 (1965). But whether such a violation is the proximate cause of injury in a particular case is ordinarily a question for the jury. Barrier v. Thomas & Howard Co., 205 N.C. 425, 171 S.E. 626 (1933). The plaintiff notes that the terms "park" and "leave standing" as used by the statute do not include a mere temporary stop for a necessary purpose when there is no intent to break the continuity of travel. Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147 (1942). Examples of cases in which this principle has been applied are: Meece v. Dickson, 252 N.C. 300, 113 S.E.2d 578 (1960), reversed on other grounds, Melton v. Crotts, 257 N.C. 121, 125 S.E.2d 396 (1962) (disabled vehicle); Leary v. Bus Corp. and McDuffie v. Bus Corp., 220 N. C. 745, 18 S.E.2d 426 (1942) (bus stopping to let passenger alight); Skinner v. Evans, 243 N.C. 760, 92 S.E.2d 209 (1956) (deputy sheriff stopped in highway to get intoxicated person on opposite side of road to get in police car); and Kinsey v. Town of Kenly, 263 N.C. 376, 139 S.E.2d 686 (1965) (police car stopped in road alongside of vehicle which policeman had stopped). We feel that these cases are distinguishable on their facts and that in this particular case Sharpe v. Hanline, 265 N.C. 502, 144 S.E.2d 574 (1965) is more applicable.

In Sharpe, supra, a truck with mechanical difficulties was left protruding onto the highway despite the availability of a fifteen to eighteen foot wide shoulder. The parked truck did not have lights or reflectors on it that could be observed by approaching motorists. The court in Sharpe, supra, found that there was sufficient evidence to go to the jury. Taking the evidence in the proper light in the case at bar we find no error in the trial court's submitting to the jury the issue of defendant Miller's negligence. Parrish v. Bryant, 237 N.C. 256, 74 S.E.2d 726 (1953).

Defendant Miller contends that the charge was erroneous in its application of G.S. § 20-161(a). This contention is without merit as the trial court's instruction was both clear and complete.

Finally, defendant Miller contends that any judgment against her be reduced by the amount that defendant Wright would be entitled to receive through the estate of his deceased wife on the theory he should not profit by his own wrongdoing. However, any wrongdoing by the defendant Wright did not contribute to the death of his wife. This is not a wrongful death case and the wrongful death statute has no application to personal injury claims. Hoke v. Greyhound Corp., 226 N.C. 332, 38 S.E.2d 105 (1946). Wright will get no direct benefit which bypasses his wife's estate. The recovery merely becomes part of the general assets of the estate of the injured party. The surviving spouse does not lose his right of inheritance because the claim arose on account of the negligence of the surviving spouse since negligence is not one of the grounds for forfeiture of marital rights as set out in G.S. § 31A-1. The recovery should not be reduced.

No error.

HEDRICK and VAUGHN, JJ., concur.