Beauchamp v. Clark

• Citation: 108 S.E.2d 535,250 N.C. 132
• Decision Date: 29 April 1959
• Docket Number: No. 386,386
• Parties: Roy Charlie BEAUCHAMP, Jr. v. Clifford Stonewall CLARK, Jr., and Pilot Freight Carriers, Inc.
• Court: United States State Supreme Court of North Carolina

Page 535

108 S.E.2d 535

250 N.C. 132

Roy Charlie BEAUCHAMP, Jr. v. Clifford Stonewall CLARK, Jr., and Pilot Freight Carriers, Inc.

No. 386

Supreme Court of North Carolina.

April 29, 1959

Womble, Carlyle, Sandridge & Rice, Winston-Salem, for appellant.

Hayes & Wilson, Winston-Salem, for appellee.

RODMAN, Justice.

Defendants appeal from a judgment awarding plaintiff damages for personal injuries sustained in a collision which occurred about noon 5 December 1956 on U. S. Highway 158. Plaintiff was driving his father's ton and a half 1950 Chevrolet truck westwardly from Winston-Salem towards Mocksville. The truck had an overall length approximating eighteen feet. It had a stake body and dual wheels on the rear. It was loaded with cinders.

Defendant Clark was driving a tractortrailer for defendant Pilot Freight Carriers, Inc. (hereafter designated as Pilot) in an eastward direction from Mocksville towards Winston-Salem. The tractortrailer had an overall length of 44 1/2 feet. The tractor had a Diesel motor, was 14 to 16 feet long. It was equipped with two wheels on the front and dual or four wheels on a single axle on the rear. It weighed approximately 11,000 pounds. The trailer was connected to the tractor by means of a 'fifth wheel' on the tractor. The trailer fits on this 'fifth wheel' and is held in place by a king pin. Near the rear of the trailer were two axles separately connected to the trailer. Each axle carried dual or a total of four wheels per axle. The body of the trailer was approximately four feet from the ground. It was twelve feet high. The body was of stainless steel or aluminum with vertical ribs on the side to provide additional strength. The trailer weighs about 10,000 pounds. It was loaded with carbon. The cargo weighed about 33,000 pounds. The gross weight of the vehicle and cargo was approximately 54,000 pounds.

Plaintiff based his right to recover on his assertion that the tractor-trailer was being operated at an unreasonable speed and on the wrong side of the road; that Clark failed to keep a proper lookout and failed to yield the right of way to oncoming traffic.

Defendants denied the allegations of negligence and pleaded contributory negligence on the part of plaintiff, asserting plaintiff was driving his vehicle at an unreasonable rate of speed and on the wrong side of the road and failed to keep a proper lookout and to yield the road to oncoming traffic.

The first asserted error presented by defendants is the refusal to allow their motion to nonsuit. This motion is based on the contention that the physical facts observed after the collision demonstrate as a matter of law plaintiff's negligent operation of his motor vehicle, proximately causing his injuries.

The collision occurred near Sheets Barbecue, a restaurant situate on the north side and about 150 feet from the highway. The space between the restaurant and the highway was unobstructed. Traveling west in approaching Sheets Barbecue there is a slight decline and curve to the driver's right.

Plaintiff testified: 'When I was coming around this curve I saw this Pilot truck; he was approximately 2 to 3 foot across the line on my side of the road, and when I saw him I applied my brakes, and the first thing that I remember hitting was the drive wheel, which is the first set of dual wheels on the tractor, right behind the cab. Then I went on down the side of the trailer, made marks down the side of the trailer. ' Plaintiff fixed his speed at 35 to 40 m.p.h. and that of the tractor-trailer at 35 m.p.h.

A witness at the restaurant testified: 'I heard the racket from the wreck, and when I did, I turned around and saw Mr. Beauchamp's truck spinning around. At the time I first glimpsed it, Mr. Beauchamp's truck was headed west, and it made a complete turn and headed back east. When I first saw Mr. Beauchamp's truck he was on the right side of the highway.'

An employee at the restaurant testified: 'As I stood there and looked out that window, I saw the two vehicles just before they hit, just a few seconds, and the transfer truck was around a foot on Beauchamp's side of the road. When I speak of the 'transfer truck,' I am speaking of the Pilot truck. Mr. Beauchamp was on his side of the road.'

Defendant Clark testified that he was passing west-bound traffic. One of the vehicles by signal indicated it intended to turn to the right to go to the restaurant. The following vehicle slowed down. Plaintiff was behind that vehicle. Plaintiff was 150 to 160 feet from Clark when he rounded the curve and first came in Clark's sight. Plaintiff was then traveling approximately 60 m.p.h. Clark was traveling 25 to 30 m.p.h. When he first saw the Chevrolet, the driver had applied his brakes, 'and I noticed that the Beauchamp truck's rear tires were sliding, and he got, I would say, somewheres around 30 feet of me, and the wheels quit sliding, and he just angled across the road and hit me as I have described, my left wheels were I would say roughly about two feet from the center line, to the south side of the center line. When I say 'left wheels,' I am referring to all of the wheels, the tractor wheels and the trailer wheels.'

Following the collision the Chevrolet was to the north of the center line of the highway, headed in a northeasterly direction, partly off the highway. The front wheels were broken, the hood badly crushed, with a crease in it from which it could be inferred that it had been caught under the trailer. The cab was injured. The panel on the right side of the body was gone.

The tractor was headed south, occupying practically all of the south lane of the highway. The trailer, still coupled by the fifth wheel, was headed in an easterly or southeasterly direction. The right rear wheels were south of but within a few inches of the white line marking the center line of the highway. The front end of the trailer was likewise over the center line of the highway but occupied less of the north lane than did the rear end. The left tire on the drive wheel of the tractor had burst and the wheel had been knocked back 2 or 3 inches. This disconnected the drive shaft and dropped it on the ground. One of the upright ribs on the body had been knocked off. The body was otherwise damaged on the left side. There were signs under the body showing where it had been scraped. The left forward axle under the trailer was broken loose and knocked back and out of alignment. Clark testified: 'When the left part of my tractor was struck, I was knocked into the floorboard, down underneth the steering wheel, between the seat and the brake pedals, and so forth. After the collision took place, the wheels being knocked out of line and the road slanting there, my unit rolled down across the white line, and the tractor went into a jackknifed position. I'd say my tractor-trailer traveled around 8 feet after the Beauchamp truck struck the tandem wheels on the lefthand side of the trailer.'

Controversy exists as to brake marks made by the tractor-trailer. On the north side of the highway and to the east of the portion occupied by the vehicles after the collision were skid marks made by dual wheel tires. The northernmost of these skid marks were about eighteen inches from the north edge of the road. The southernmost were well to the north of the center line of the highway. These skid marks terminated abruptly some five feet or more from the rear of the trailer. These skid marks were apparently made by the Chevrolet.

Does this evidence force one to a single conclusion as to the cause of the collision? The answer must, we think, be in the negative. Where were the vehicles prior to the collision? If plaintiff's testimony is accepted, he was to his right of the center of the highway, and Clark was to his left. If so, Clark was violating the statute which commands: 'Drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main-traveled portion of the roadway as nearly as possible. ' G.S. § 20-148.

The skid marks made by the Chevrolet may reasonably support plaintiff's assertion that having discovered Clark's violation of the law, he was trying to avoid a collision with the tractor-trailer.

That the vehicles came together with such force as to cause the damage depicted to each vehicle does not necessarily mean that the Chevrolet was being operated at such a high rate of speed as to demonstrate a violation of the statute law or the rule of the prudent man.

When the front portion of the vehicles came in contact, was the Chevrolet then moving or had it stopped? Does the termination of skid marks from its wheels indicate they had ceased to move? Would the momentum given to a mass moving with the velocity which Clark accords his vehicle produce the damage shown to that mass by striking a motionless body like the loaded Chevrolet? On these questions reasonable persons may reach different conclusions. That being true, the court correctly overruled the motion to nonsuit. Kirkman v. Baucom, 246 N.C. 510, 98 S.E.2d 922; Jernigan v. Jernigan, 236 N.C. 430, 72 S.E.2d 912; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Adcox v. Austin, 235 N.C. 591, 70 S.E.2d 837.

The factual situation presented in this case is readily distinguished from the situation depicted in Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88. If physical facts can speak louder than living witnesses, all notes produced by the facts must be in harmony. Discord in the inferences drawn from physical facts requires a jury interpretation just as discord in parol testimony requires an evaluation before a final determination can be made.

Defendants pleaded compromise and settlement to defeat plaintiff's recovery. To establish their plea, they offered:

(1) A policy of insurance issued by Nationwide Mutual Insurance Company to plaintiff's father, owner of the Chevrolet truck. This policy provided insurance coverage for...