Black v. Gurley Mill. Co., 174

• Citation: 127 S.E.2d 515,257 N.C. 730
• Decision Date: 10 October 1962
• Docket Number: No. 174,174
• Court: North Carolina Supreme Court
• Parties: D. J. BLACK, t/a D. J. Black Motor Express v. GURLEY MILLING CO., Inc., and J. T. Medlin.

Page 515

127 S.E.2d 515

257 N.C. 730

D. J. BLACK, t/a D. J. Black Motor Express v. GURLEY MILLING CO., Inc., and J. T. Medlin.

No. 174

Supreme Court of North Carolina.

Oct. 10, 1962

John J. Burney, Jr., and Isaac C. Wright, Wilmington, for plaintiff appellant.

Henry & Henry, Lumberton, for defendant appellees.

PARKER, Justice.

Plaintiff's evidence shows these facts:

About 2:30 p. m. on 12 January 1959, during fair weather and 'broad-open daylight.' a truck owned by Gurley Milling Co., Inc., and driven by its employee J. T. Medlin, was standing still in the middle of U.S. Highway 74-76 fronting west near the Leland School, and 200 feet or further west of a railroad crossing in or near the town of Leland. It had no flares or lights behind it. Medlin was sitting in the cab with the hood of the tractor up.

About the same time, H. E. Raynor was driving a 52-foot-long tractor and oil tanker filled with 6800 gallons of gasoline for Concord Transfer Company westerly on the same highway at a speed of approximately 35 miles an hour and approaching the railroad crossing. Plaintiff's tractor and oil tanker filled with 5700 gallons of gasoline and driven by his employee William S. Bullard was following Raynor at a distance behind of 150 to 200 feet. At the railroad crossing there was a coal car on the west side of the highway which obstructed Raynor's view. After crossing the railroad there is nothing to prevent one from seeing west on the highway for several miles. When Raynor passed over the railroad crossing he saw the Gurley truck standing still in the middle of the highway 200 feet or further ahead. Raynor turned on his blinker lights to pass to the left of the Gurley truck, but could not do so because of oncoming traffic. Whereupon, he turned off his blinker lights, applied his brakes causing his lights to come on, and stopped on the highway three feet behind the Gurley truck. Raynor testified on cross-examination: 'I did not need any flares. I saw his truck had stopped. I was paying attention and had no wreck--I didn't need any flares--it was daytime. I saw the truck and stopped.' Medlin told Raynor 'his truck knocked off in the highway,' and he had been sitting there 30 minutes.

William S. Bullard, plaintiff's employee and driver, testified in substance, except when quoted: He was driving about 35 miles an hour, 75 to 100 feet behind the Raynor tractor and tanker, and keeping a lookout. He could see the distance between him and the Raynor tractor and tanker--that was as far as he could see up the highway. He saw Raynor's left hand signal come on, and Raynor swung to the left, and then pulled back sharp to the right. He didn't know exactly what was going on, and when he found out it was too late. He testified: 'I was going around him to the left, and there was traffic coming, and I could not cut in unless I ran head on, and I pulled to the right. I locked all my wheels. When he signalled the left turn, I slowed up and took my foot off the accelerator. When he pulled back in I knew what he was going to do. He had got on his brakes; I hit all my brakes. I brought my truck to a stop by the side of the Gurley Milling truck, off to the right of the highway.' He asked Medlin what was wrong, why he didn't have out some lights or something. Medlin said 'He had trouble with it every time he had left with it.' After a partolman arrived Medlin cranked up, and drove off. When Bullard drove off the highway, he struck a power pole, which damaged the tractor and tanker.

Bullard testified on cross-examination: 'When I got to the railroad crossing the Concord truck was kind of on the left hand side of the road with his signal light on; he was 75 or 100 feet in front of me. The tank had my view blocked, it was right in front of me. * * * When I crossed the railroad I could see west up the highway a mile. I knew the tanker was there, but I did not know there was a truck broke down in the middle of the road. * * * The first time I saw that truck was when I went in the ditch. I drove off the road to keep from hitting cars coming. * * * I tried to stop because I saw the tanker lights go on. I was close behind him. You can't see through an oil tanker. I tried to go around him on the right when he stopped, and I saw him pull back in the road, and 2 just did miss him, and I was trying to miss all of them. There were some children in the school yard playing, and I went on that side. That was the only way to keep two oil tankers from blowing up in front of the school house. I ran about 50 feet before I stopped. I was following him about 75 feet when I saw his blinker lights go on. I was about 50 feet behind him when I saw his brake lights go on. I don't know how far I was before I stopped--about 100 feet.'

Plaintiff's evidence further shows the extent of damage to his tractor and tanker, the loss of 200 gallons of gasoline, the loss of profits for two weeks while the tractor and tanker were being repaired, and that he paid $26.00 for damage to the power pole.

Plaintiff alleges in his complaint that the Gurley truck stopped suddenly on the highway creating a sudden emergency and forcing plaintiff's driver to attempt to pass on the right and forcing him on a soft shoulder and into the ditch. His evidence shows that the Gurley truck had been sitting on the highway 30 minutes before Raynor stopped behind him. In spite of this variance between plaintiff's allegation and proof, but conceding that plaintiff has other allegations and proof of negligence on the part of the driver of the Gurley truck, this question is presented for decision: Does the evidence, viewed in the light most favorable to plaintiff, show that a proximate cause of his damages to his tractor and oil tanker was the negligence of the driver of his motor vehicle?

Defendants have pleaded contributory negligence on the part of the driver of plaintiff's tractor and oil tanker in driving it on a highway without exercising that degree of prudence and caution required by law, and at a rate of speed that was not reasonable and prudent under the circumstances then and there existing, and without exercising any care for his own safety. Defendants have not pleaded as an act of contributory negligence on the part of the driver of plaintiff's tractor and tanker that he was operating it in violation of the provisions of G.S. § 20-152(b), which provides 'the driver of any motor truck, when traveling upon a highway outside of a business or residence district, shall not follow another motor truck within three hundred feet, but this shall not be construed to prevent one motor truck overtaking and passing another.' Therefore, defendants cannot avail...