Allen v. Dr. Pepper Bottling Co. Inc
| Decision Date | 28 April 1943 |
| Docket Number | No. 306.,306. |
| Parties | ALLEN. v. DR. PEPPER BOTTLING CO., INC., OF WASHINGTON. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pitt County; Henry L. Stevens, Judge.
Action by Carrie M. Allen, administratrix of L. E. Allen, against Dr. Pepper Bottling Company, Inc., of Washington, North Carolina, to recover damages for wrongful death resulting from an automobile-truck collision. From a judgment of nonsuit, the plaintiff appeals.
Affirmed.
Civil action to recover damages for wrongful death resulting from automobile-truck collision.
On the night of 24 December, 1940, defendant had two trucks traveling on the highway from Plymouth to Washington. They were 1½ ton trucks about 94 inches wide and 18 feet long loaded with crates of "Dr. Pepper" and ginger ale. There was evidence that the rear truck had been in a collision on Albermarle Sound bridge. The two trucks stopped, apparently for repair, partly on and partly off the hard surface, at a point between Plymouth and Washington near Acre Station. They stopped with the left wheels about two feet on the pavement. The front parking lights were burning. The evidence tends to show that the rear lights were not on but there were reflectors. No flares were set. There appeared to be a cable or chainbetween the two trucks which were about 25 or 30 feet apart.
When the trucks had been standing for about 15 to 30 minutes, at about 7 P. M., it being dark, plaintiff's intestate approached from the rear on a Ford V-8 going towards Washington. He ran into the rear truck and was killed. One passenger was also killed and another injured.
There are two slight curves in the road, the straight-away being about four-tenths of a mile and the truck stopped about midway between the curves. The right of way had been cleared so that the curve formed no obstruction to view during the day time. As the deceased rounded the curve on the Plymouth side he met another car. After he had entered the straightaway he cut slightly to the left and then back and applied his brakes which left skid marks on the pavement from 100 to 190 feet long. As he approached the rear truck he "dodged" to the right and ran on the shoulder of the road so that the left front of his car struck the rear right of the truck. The car was considerably damaged. As he approached the truck there was another car coming from towards Washington two or three hundred yards away.
The weather was fair, visibility was good, the trucks were tall and painted red and could have been seen easily by one keeping a careful lookout. So the witnesses for plaintiff testified.
At the conclusion of the evidence for the plaintiff, the court, on motion of the defendant, entered judgment of nonsuit and plaintiff appealed.
W. L. Whitley, of Plymouth, and Blount & Taft, of Greenville, for plaintiff, appellant.
J. B. James, of Greenville, for defendant, appellee.
On this record evidence of negligence on the part of defendant must be conceded. Ch. 407, P. L. 1937, sections 97 and 123. The nonsuit must be sustained, if at all, upon the contributory negligence of plaintiff's intestate.
As the deceased approached from the rear, rounding the curve, the beam of his lights was thrown to the left of the highway so that his vision along the pavement was restricted. He was going 50 miles per hour. He met another car on the curve and slowed to about 45 miles per hour As he entered the straight-away he was still 200 to 300 yards from the parked truck. Apparently he did not see it at that time. When, however, he was within 50 to 75 yards he applied his brakes, locking the wheels so that they left skid marks on the pavement for a distance of 150 feet or more--"50 steps". Even then he was unable to stop his car before striking the truck with considerable force.
Curves on the road and darkness are conditions a motorist is required to take into consideration in regulating his speed "as may be necessary to avoid colliding with any person, vehicle, or other conveyance." Sec. 103, Ch. 407, P.L. 1937. He must...
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