Civil
action to recover damages for personal injury resulting from
alleged actionable negligence. Defendants denied allegation
of negligence, and pleaded contributory negligence.
On
the night of 6 November, 1938, plaintiff's automobile
driven by his nephew, Alvis Beck, at his request and under
his direction, and in which he was riding, traveling north on
U. S. Highway No. 15, from Durham toward Oxford, ran into and
collided with the rear end of a trailer truck of defendants
loaded with furniture, and likewise headed north, standing
partly on and partly off the paved portion of the highway on
the east or right side thereof, at a point in Granville
County, North Carolina, about one mile north of Harris'
filling station and three miles south of the town of
Creedmoor and near the foot of a slight down grade, resulting
in serious personal injury to plaintiff. At the point of
collision the paved portion of the highway was eighteen feet
wide. The shoulder on the right side there was four or five
feet wide. Southward, the highway was slightly upgrade and
straight, or practically straight, for two hundred yards to
one thousand feet, and northward it curved slightly to the
left.
Plaintiff's
evidence tended to show these facts: When the plaintiff's
automobile and defendants' truck came to rest after the
collision they were both partly on and partly off the paved
portion of the highway, and on the east or right side
standing twenty to thirty feet apart. One tail light, a dim
light, was burning. Lights on one side, the clearance lights
were burning. The dim tail light was on the body of the
truck, and "two or three were mashed up over there where
it was torn up". There was clearance of ten or twelve
feet to the left of the truck according to the testimony of
the Chief of Police when he arrived about thirty minutes
after the wreck occurred.
Plaintiff
and Alvis Beck were the only witnesses for plaintiff with
respect to the operation of plaintiff's automobile
immediately preceding the collision.
Narratively
stated, plaintiff testified: "We were coming down the
right *** just over the crest of a hill and was meeting an
automobile and when the automobile passed our light flashed
on the truck, or I guess it was a truck,--it was a bulky
something in the road. That is the last thing I remember ***
At the time I first observed the object *** there was one
light visible on the right side, a little bitty dim red
light. *** I detected the light pretty much as soon as I saw
the object in the road. I was keeping a lookout along the
road in front of me ***". Then on cross examination he
testified: "*** I should judge that from where I come
over the crest of the hill *** to where I struck this truck
is somewhere around 150 yards. When I come over the crest of
the hill and traveling at the rate of forty miles an hour
there was nothing in between me and what was there *** my
lights *** showed as far as from the witness chair to the
back end of the court house (admitted to be 67 feet). I
don't know how far my lights were showing that night at
the rate of forty miles an hour. I imagine it was around
fifty feet *** approximately fifty feet. *** The brakes were
in perfect condition. *** going forty miles an hour ***
according to my testimony it would take me the full distance
of my light beam to come to a stop. At the time I come over
the crest of this hill and started down there was an
unobstructed view of 150 yards. I looked down the road. I
didn't see anything. I imagine you could see down to the
foot of the hill. When I came to the crest I looked as far
down as I could see. I continued to look all the way down.
*** The lights of that automobile that I was meeting looked
to be reasonably bright. *** What kept me or the driver from
seeing that parked object in the highway was that you
can't see as far down the highway when you are meeting an
automobile. The curve beyond where the truck was parked was
just a little bit of curve, not very much, bearing a little
bit to the left. I know the lights were bright, and I saw the
automobile before I hit the truck. *** I do know that I was
looking straight ahead to see if anything was in the road. I
always do. Alvis seemed to be looking straight ahead *** When
I finally met this automobile, or passed it, it might have
been 14 feet from the truck *** somewhere around that. I saw
one light on the truck, a red light. When I saw that light I
said or did nothing *** I felt him put on brakes. There was
nothing else I could do *** When I first saw the truck I
would say I was as much as 12 or 14 feet
from the truck. Another automobile was
coming that kept us from cutting between that 14-foot gap and
missing that truck *** I admit it took me and my agent
somewhere around 50 feet to stop. *** There was an automobile
meeting us and it passed us beyond the truck, and when that
passed, another light flashed up and that is the last thing I
remember. I didn't see any 14-foot gap. I don't know
what kept us from going around it."
Alvis
Beck, testifying for plaintiff, said: "After we left
Harris' filling station, we hit a truck. They said it was
a truck. I couldn't tell what it was that night. *** I
drove just ordinary speed, I reckon around 40 miles an hour
*** I was keeping a lookout along the highway in front of me
*** After I passed the automobile I saw the object in front
of me, whatever it was, a great big something in the road ***
I was something like as far as from the witness chair to the
back side of the building when I first discerned it. After
seeing the truck I tried to stop. I knocked it out of gear,
and put on brakes, pushed in the clutch. I was not able to
stop it. I didn't see any light or lights on the object
which I saw in front of me there on the highway. I was
looking along the highway in front of me. The front end of
the car I was in struck the object which was in the road.
***" Then on cross examination the witness testified:
"I had driven this car before, several times. I am
familiar with the speed *** I knew approximately how long it
would take to stop a car with the brakes I had *** I have
driven over that road many times. *** When you come to the
top of the hill you can see down there if there is no car
coming to blind you, if there was nothing between you, you
could see that far. I don't know how fast I was going
when I ran into the truck, I reckon about 15 or 20 miles an
hour *** An automobile passed us. When I was coming over the
grade, the car was coming to meet me. I don't know how
far away I was from the automobile that I said blinded me
when I saw it. As far as from here across the street maybe.
Those lights blinded me. I took my foot off the gas then. I
started slowing down because the oncoming lights blinded me.
The lights were blinding me, keeping me from seeing the truck
in front of my lights. I couldn't look down the road. I
did not drive blinded at 40 miles an hour when I couldn't
even see. I could see some. They blinded me, but I seen the
truck before I hit it. I drove, according to my testimony, as
far as from here across the street, with the lights blinding
me. I slackened up then *** I don't know whether I was as
far as from the witness chair to the back end of the court
house before I saw it or not. I said it was something like
that. I don't know why I didn't stop when I saw it,
it excited me or something. *** I just couldn't stop when
I saw it. I reckon the reason I didn't I was so close to
it. *** When I saw the truck I did not see any lights on the
truck. I did not see a red light. If the truck had any lights
on it I did not see it. Just as I passed the automobile,
whose lights I testified blinded me, after I got past it, I
seen the truck. Some more lights were coming that kept me
from going through the gap and going around the truck. *** I
didn't see a wrecked automobile to the left. I didn't
see the man there. I don't remember seeing any of these
five people there that night."
On
the other hand, evidence of defendants tends to show these
facts: The truck was properly equipped with lights, both in
front and on the rear, six lights on the back of the truck
including clearance lights and arrow signal light containing
tail light. The lights were inspected in Durham, and as the
truck was driven by James Mellis, from Durham toward Oxford,
a Plymouth automobile in which two men, two women and a baby
were riding, passed the truck at a point about a half mile
south of the point of the collision between plaintiff's
automobile and the truck, at which time the lights on the
truck were burning. The Plymouth continued to travel about 75
feet in front of the defendants' truck over the crest of
the hill and down the grade for approximately 150 yards or
more, when its left rear wheel came off causing it to wreck
and overturn, upside down, diagonally across the highway, so
that the truck could not pass on either side. The truck
driver pulled the truck to the right, partly off the
pavement, and stopped there within 18 inches or 2 feet of the
rear bumper of the upturned car, when he heard the cries of a
woman and a baby. Whereupon, he aroused L. W. Seward, who was
sleeping in the truck, and they both, Seward in his bare
feet, went to the overturned car to assist the passengers in
getting out. Then James Mellis, with the two men who were in
the Plymouth turned it upright and practically
off the left side of the highway. A truck
traveling north then came along and passed through between
defendants' truck and the Plymouth. Then the sound of the
plaintiff's automobile was heard coming at a terrific
rate of speed at the top of the hill and it came into sight
at least 200 yards away, running at an...
