Ratliff v. Duke Power Co., 437

• Decision Date: 14 December 1966
• Docket Number: No. 437,437
• Citation: 151 S.E.2d 641,268 N.C. 605
• Court: North Carolina Supreme Court
• Parties: , 21 A.L.R.3d 360 Howard Thurman RATLIFF, Administrator of the Estate of Howard Thurman Ratliff, Jr. v. DUKE POWER COMPANY.

Page 641

151 S.E.2d 641

268 N.C. 605, 21 A.L.R.3d 360

Howard Thurman RATLIFF, Administrator of the Estate of Howard Thurman Ratliff, Jr. v. DUKE POWER COMPANY.

No. 437.

Supreme Court of North Carolina.

Dec. 14, 1966.

Deal, Hutchins & Minor, Winston-Salem, for defendant appellant.

Moore & Rousseau, North Wilkesboro, for plaintiff appellee.

LAKE, Justice.

There is no evidence whatever in the record before us to show that the defendant's truck was operated at a speed greater than was reasonable at or before the collision which caused the death of the plaintiff's intestate, nor is there any indication of any failure to give the signal required by statute of the driver's intent to turn left at the intersection.

The fact that, in the process of turning left, the combination of the truck, trailer and pole blocked both lanes of traffic upon the highway does not constitute proof of negligence or other wrong doing per se. To so hold would mean that a truck towing a 40 foot pole could never make a left turn from a two lane highway.

However, the evidence, viewed in the light most favorable to the plaintiff, is sufficient to support a finding that the red flag attached to the pole was no more than 12 inches square, the statutory minimum, and was so affixed to the pole that it lay partially draped upon the top of the pole so that no more than eight inches of its length hung downward.

G.S. § 20--117 provides:

'Whenever the load on any vehicle shall extend more than four feet beyond the rear of the bed or body thereof, there shall be displayed at the end of such load, in such position as to be clearly visible at all times from the rear of such load, a red flag not less than twelve inches both in length and width, except that between one-half hour after sunset and one-half hour before sunrise there shall be displayed at the end of any such load a red light plainly visible under normal atmospheric conditions at least two hundred feet from the rear of such vehicle.'

The obvious purpose of the statute is to promote the safety of one following such a vehicle upon the highway. Its clear meaning is that during daylight hours a red flag shall be displayed from the end of such projecting load so that there shall be visible to a user of the highway following the vehicle at least 12 inches of the flag's length and 12 inches of the flage's width. The requirement of the statute is not met by draping over the top of the load a red flag of the required dimensions so that only a fringe of it is visible to one following the vehicle upon the highway.

The violation of a statute which imposes a duty upon the defendant in order to promote the safety of others, including the plaintiff, is negligence per se, unless the statute, itself, otherwise provides, and such negligence is actionable if it is the proximate cause of injury to the plaintiff. Carr v. Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Murray v. Aircraft Corporation, 259 N.C. 638, 131 S.E.2d 367; Drum v. Bisaner, 252 N.C. 305, 113 S.E.2d 560; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273.

In Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733, this Court said that violation of this statute by failure to display at night a light, such as is required thereby, is negligence. The violation of the statute during the daylight hours, by failure to comply with its requirements applicable to such time, must lead to the same result. It is all the more imperative that the flag be displayed so as to catch the eye of the following motorist when the projecting load is a long narrow object, such as a utility pole being towed lengthwise along the highway. Without such a warning device, all that is visible to the following motorist is the end of the pole, which is but a few inches in diameter and usually of a color not easily seen against the surface of a black-top highway or the rear of a towing vehicle.

G.S. § 20--116 imposes maximum limits upon the dimensions, including length, of vehicles and combinations of vehicles which may be lawfully operated upon the highways of this State without a special permit, issued pursuant to G.S. § 20--119. However, G.S. § 20--116(e) provides that this length limitation 'shall not apply to vehicles operated in the daytime when transporting poles.' Thus, it was not unlawful, or negligence per se, for the defendant to transport this 40 foot pole along the highway or to make a left turn at an intersection of highways.

In making a left turn, a driver of a motor vehicle is required by G.S. § 20--154 to 'see that such movement can be made in safety' and to give the specified signal of his intent to turn. G.S. § 20--154; Farmers Oil Company v. Miller, 264 N.C. 101, 141 S.E.2d 41. It is not necessarily enough, however, to absolve him from negligence that he looked and gave the statutory signal. A driver must always use the care which a reasonable man would use under like circumstances. The care which is reasonable in making a left turn at an intersection depends, in part, upon the nature and dimensions of the vehicle, or combination of vehicles, to be turned and of the load, if any, projecting from the rear thereof. When the turning vehicle is drawing behind it a 40 foot pole, it is obvious that a left turn at a right angle will involve some swinging of the end of the pole in an are through part of the intersection. Evidence of such a turn with such a load is sufficient to permit, though not to require, the jury to find that reasonable care for the safety of other users of the highway demands the stationing of some person at the intersection to stop traffic which may otherwise be imperiled by the turn.

The evidence offered by the plaintiff, interpreted in the light most favorable to him, as is required in a motion for judgment of nonsuit, is sufficient to support, though not to require a finding that the defendant was negligent and that such negligence was the proximate cause, or one of the proximate causes of the collision and of the death of the plaintiff's intestate.

A judgment of nonsuit may not be entered in an action for wrongful death on the ground of contributory negligence by the deceased, unless the plaintiff's evidence, considered in the light most favorable to him, establishes negligence by the deceased and that such negligence was one of the proximate causes of the collision so clearly as to admit of no other reasonable conclusion. Young v. Baltimore & O.R.R., 266 N.C. 458, 146 S.E.2d 441; Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360.

The record discloses that no witness saw the automobile of the deceased until it was within five feet of the end of the pole. There is, therefore, no direct evidence as to its speed or as to the manner of his driving. G.S. § 20--152 forbids the driver of a motor vehicle to follow another vehicle more closely than is reasonable and prudent, and a violation...