Adams v. Mills, 282A84

• Decision Date: 06 November 1984
• Docket Number: No. 282A84,282A84
• Citation: 322 S.E.2d 164,312 N.C. 181
• Parties: Joe H. ADAMS v. Hazel Z. MILLS.
• Court: North Carolina Supreme Court

Page 164

322 S.E.2d 164

312 N.C. 181

Joe H. ADAMS v. Hazel Z. MILLS.

No. 282A84.

Supreme Court of North Carolina.

Nov. 6, 1984.

Caudle & Spears, P.A. by Lloyd C. Caudle and Thad A. Throneburg, Charlotte, and Henry T. Drake, Wadesboro, for plaintiff-appellee.

Leath, Bynum, Kitchin & Neal, P.A. by Fred W. Bynum, Jr., and Henry L. Kitchin, Rockingham, for defendant-appellant.

MEYER, Justice.

This action arose out of a two-vehicle collision which occurred when a pickup truck operated by the defendant struck the left rear of plaintiff's 1974 Ford F-750 dump truck, which was in a stationary position at the time of the collision. It is the defendant's contention that the plaintiff was contributorily negligent in temporarily letting his dump truck stand with a portion of it extending into the main traveled portion of the highway and that this negligence was a proximate cause of the collision. The sole issue presented on this appeal is the sufficiency of the evidence to support the defendant's affirmative defense of contributory negligence.

The evidence tended to show that on 4 February 1981, the plaintiff was to landscape a house on Rural Paved Road No. 1003 in Anson County. At about 5:00 p.m. he arrived at the house with a load of driveway stone. Plaintiff testified that he pulled up past the driveway, turned on his 4-way flashing lights, and backed his dump truck into the driveway. Plaintiff then climbed out of the dump truck, loosened the dump clamps, raised the dump up partially and started to drive out towards the road, dumping the rock as he went along. After dumping all of the rock, plaintiff pulled his truck out into the highway by turning in a westerly direction. Plaintiff proceeded about 42 feet west of the driveway with his flashers still on, stopped his truck on the right (northern) shoulder of the road to clean the excess rock off the back of the tailgate and to secure the tailgate. Plaintiff again climbed out of his dump truck and went around to the back. He testified that he was probably stopped there for less than a minute before the collision. As he was fastening the tailgate, plaintiff heard defendant's truck coming down the road. Plaintiff testified that he looked over his right shoulder, saw the truck coming directly toward him, and jumped across the back of the truck to avoid being hit. The plaintiff did not hear the screech of tires or the defendant's horn.

The plaintiff testified further that the highway was a two-lane, paved road with one lane for eastbound traffic and one lane for westbound traffic. From the driveway looking in an easterly direction, there was a clear and unobstructed view for 1200 to 1400 feet. In a westerly direction, there was a straight, unobstructed view for 1100 to 1200 feet. Defendant's vehicle was coming from the east and heading in the direction of the bright, late afternoon sun which was setting in the west. The collision occurred between 5:00 and 5:15 p.m. When the plaintiff spoke to the defendant after the crash, the defendant told him that he had been blinded by the sun. Jack Painter, who was working with the plaintiff that day, testified that the defendant's truck was traveling at sixty to sixty-five miles per hour.

The evidence as to the exact position of plaintiff's dump truck prior to the collision was conflicting. The plaintiff's evidence was to the effect that the dump truck was resting entirely on the shoulder and that no portion of the dump truck extended onto the paved portion of the highway. On cross-examination, the plaintiff testified that he thought that the shoulder was "better than 8 feet wide" and that his truck was approximately eight feet wide.

I don't remember any of my truck being on the pavement. To the best of my knowledge, it was not on the pavement but was close to the pavement but I don't remember it being on the pavement.

Plaintiff testified further that the dump truck's tandem set of tires measured eighteen inches to two feet; that after the accident, the left rear end of the dump truck was resting approximately eighteen inches to two feet in the road; the front end was approximately five or six feet off the road; and that the defendant's vehicle "was behind my truck somewhat in line with my truck."

Plaintiff also testified that the shoulder on the opposite side of the road was much wider than it was on the side where the accident occurred. Plaintiff stated that he had parked another truck on the other side of the road which was completely off the pavement and not even close to the pavement. He stated that there was nothing to prevent him from taking the dump truck over to the other side of the road to put the tailgate up, he had simply decided to use the side of the road on which the shoulder was narrower. Finally, plaintiff testified that he could not secure the tailgate of his truck in the private driveway itself because he had dumped rock all the way out to the road.

The defendant's evidence was to the effect that plaintiff's truck was left standing only partially on the shoulder, with at least two feet extending and protruding into the westbound lane of travel. The State Highway patrolman called to the scene, Larry Wayne Whitley, testified that immediately after the accident, plaintiff had stated that he had pulled as far off the road as he could, but that the wheels on the left side of his truck were on the pavement. Whitley testified further that he measured the width of the shoulder at the point of the collision and that it was six feet wide. To the right of the shoulder a ditch swept off into a gutter. On the opposite side of the road directly across from the six foot shoulder was a thirteen foot and five inch shoulder. Both shoulders were more or less level with the pavement. Whitley also testified that there were no skid marks from the defendant's truck and that the defendant stated he had never decreased his speed.

The defendant testified as follows:

When I topped the hill about a quarter of a mile east of the accident scene, I noticed the sun was bright in front of me. I could see but I couldn't--the sun still kept me from seeing. I am sure you have been in places where the sun is bright. And I couldn't see a long distance ahead of me, as I went on down the hill. When I topped the hill I could see the area and Joe Adams' truck down there but I assumed the truck was off the road. From that distance I could not tell whether it was on the pavement or not. Then I proceeded on down the hill, and I got about halfway down the hill and the sun got worse. I pulled my sun visor down, and I put my right hand up so I could see the road.

The sun just blinded me. I guess it was through my glass and truck too--the sun blinded me. I was trying to see the road, and I started--I saw the center line. I didn't want to run into anybody. I looked at the center line. I was following the center line as close as I could; yet I was not going to cross the center line because I might run head on into somebody. I don't know how long I did that. I slowed the truck down and I proceeded following the line hoping I was going to run out of the sun. I've run into sunny places, and you'd go a little ways and run out of it.

Well, the next thing I knew I'd done had had the wreck, and the Rescue Squad picked me up whenever I come to where I could realize anything. I am definitely sure I didn't leave the pavement of the road because I was following as close to the line as I could--that's the only thing I had to go by--and hoping I'd run out of the sun to get my vision back on the full vision of the road. I could see the road from a distance out there, but not a long distance ahead of me. I would say I was traveling from 20 to 30 miles an hour. I don't think I exceeded 30. I don't think I'd be up here telling about it if I was driving much faster than that.

The trial court ruled that the foregoing evidence failed to establish the plaintiff's contributory negligence and refused to submit the issue of contributory negligence to the jury. The jury found the defendant negligent and awarded plaintiff property damages for his vehicle.

When charging the jury in a civil case, it is the duty of the trial court to explain the law and to apply it to the evidence on the substantial issues of the action. N.C.G.S. 1A-1, Rule 51(a); Cockrell v. Transport Co., 295 N.C. 444, 245 S.E.2d 497 (1978). "If a party contends that certain acts or omissions constitute a claim for relief or defense against another, the trial court must submit the issue with appropriate instructions if there is evidence which, when viewed in the light most favorable to the proponent, will support a reasonable inference of each essential element of the claim or defense asserted." Id. 295 N.C. at 449, 245 S.E.2d at 500. See also Vernon v. Crist, 291 N.C. 646, 231 S.E.2d 591 (1977).

Contributory negligence constitutes an affirmative defense; therefore, the defendant had the burden of proving (1) that plaintiff failed to exercise proper care in the performance of a legal duty which plaintiff owed to defendant under the circumstances in which they were placed; and (2) that such negligent breach of duty was a proximate cause of the injury suffered. See Hairston v. Alexander Tank & Equipment Co., 310 N.C. 227, 311 S.E.2d 559 (1984); Murray v. R.R., 218 N.C. 392, 11 S.E.2d 326 (1940); Whitt v. Rand, 187 N.C. 805, 123 S.E. 84 (1924).

The Court of Appeals held that the trial court was not obligated to charge the jury on contributory negligence or to submit it as an issue because the defendant failed to carry his burden of proving that the plaintiff was negligent and that such contributory negligence was a proximate cause of the collision. The majority specifically found that defendant failed to offer "any evidence that the plaintiff violated [N.C.] G.S. 20-161(a), the basis for [defendant's] contributory negligence claim" because (a) "he has offered no evidence that the stop was not...