Bondurant v. Mastin, 164

• Decision Date: 23 March 1960
• Docket Number: No. 164,164
• Citation: Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292 (N.C. 1960)
• Court: North Carolina Supreme Court
• Parties: William H. BONDURANT, Administrator of Estate of Charles Ray Baker, deceased, v. John MASTIN, individually, and trading and doing business as 'Holland, Mastin and Sale Company,' and as 'H. M. & S. Refrigerated Service;' and John Ralph Sloop and Edward Ellis Prevette.

Page 292

113 S.E.2d 292

252 N.C. 190

William H. BONDURANT, Administrator of Estate of Charles Ray Baker, deceased, v.John MASTIN, individually, and trading and doing business as 'Holland, Mastin and Sale Company,' and as 'H. M & S. Refrigerated Service;' and John Ralph Sloop and Edward Ellis Prevette.

No. 164

Supreme Court of North Carolina.

March 23, 1960

Kennedy, Covington, Lobdell & Hickman and R. Cartwright Carmichael, Jr., Charlotte, for defendants, appellants.

C. E. Leatherman and Harvey A. Jonas, Jr., Lincolnton, for plaintiff, appellee.

PARKER, Justice.

The three defendants filed a joint answer, in which it is admitted that defendantJohn Mastin does business under the name of both Holland, Mastin and Sale Company and of H. M. & S. Refrigerated Service, of which he is sole owner.The answer also alleges that defendantJohn Mastin was engaged in the business of transportation by tractors and trailers of commodities and foodstuffs, and on 16 November 1958 Holland, Mastin and Sale Company was the registered owner of a 1956 Mack tractor and John Mastin was the registered owner of a 1955 Mack tractor.The answer also admits that at the times referred to in the complaint defendantJohn Mastin's 1956 Mack tractor and 1957 Dorsey trailer combination was being operated by defendantJohn Ralph Sloop as the agent, servant and employee of defendantJohn Mastin, operating under his firm name, in the course of his employment and in furtherance of the business of his master and codefendant John Mastin.The answer has a similar admission as to the defendantEdward Ellis Prevette, except that he was operating a 1955 Mack tractor and 1956 trailmobile trailer combination.

Defendants have three assignments of error: one, the denial of their motion for judgment of nonsuit made at the close of plaintiff's evidence, two, the denial of their motion for judgment of nonsuit renewed at the close of all the evidence, and three, the entry of the judgment.

Defendants' contentions are, that if the defendantsJohn Ralph Sloop and John Mastin were negligent, such negligence was not the proximate cause of the death of plaintiff's intestate and of damage to his automobile, and two, that if defendants are guilty of actionable negligence, then plaintiff should have been nonsuited because of the contributory negligence of his intestate.

Plaintiff's evidence, and defendants' evidence favorable to him, or which tends to explain and make clear that which has been offered by plaintiff, tends to show the following facts: The time was about 3:30 p. m. Sunday, 16 November 1958.The scene was on U. S. HighwayNo. 321 about one mile north of the town of Dallas near Little Long Creek Bridge.This bridge is 47 feet long and its roadway is 20 feet wide.About 600 feet north of this bridge is a State Highway sign marked 'Narrow Bridge.'The asphalt pavement of the highway at this point is 22 feet wide.Robert M. Wingo, a surveyor and witness for the defendants, testified: 'I measured the width of the highway on the south side of the bridge just before it goes onto the bridge.* * * The highway varies in width from 22 feet coming around the curve down to 19 feet on approach to the bridge. ' This highway had been resurfaced about 6 months prior to 16 November 1958, which raised the pavement 3 or 4 inches above the shoulder or dirt portion of the highway, and this extends to where the guardrails come to the edge of the bridge.Approaching the bridge from the south and going north to Lincolnton, the highway curves to the right, then turns to the left going down hill, then straightens and makes another left curve and approaches and leads up to the south edge of the bridge.When the road was built, an embankment was constructed about 10 feet high to afford an approach to the south end of the bridge, and the highway is about 10 feet higher than the adjacent land.On the south side of the bridge are guardrails, and on the eastern side of the highway these guardrails extend south about 48 feet from the abutments of the bridge.From the bridge to the end of the guardrails the dirt shoulder is very narrow, varying from one to four feet.From the end of the guardrails south the dirt shoulders widen out several feet.Approaching this bridge from the north and going south to Dallas the highway goes straight down a long hill and on to the bridge.

The defendantJohn Ralph Sloop driving south his codefendant John Mastin's 1956 Mack tractor and 1957 Dorsey trailer combination entered on this bridge travelling at a speed of 60 to 65 miles an hour.Following Sloop at a distance of about 80 feet was a 1955 Mack tractor and 1956 trailmobile combination owned by defendantJohn Mastin and driven by defendantEdward Ellis Prevette at about the same speed.Approaching this bridge at the same time and travelling north was a 1957 Buick automobile driven by William H. Bondurant at a speed of 40 to 45 miles an hour up to within 200 feet of the bridge.Following Bondurant's automobile was a 1957 Mercury automobile owned and driven by plaintiff's intestate, Charles Ray Baker, at a similar speed.In Baker's automobile as passengers were his wife, his two children, his sister and her son.The Bondurants and the Bakers were relatives.On this Sunday they had visited in Lowell the father of Mrs. Bondurant and Charles Ray Baker, had left there about 3:10 p. m., and were returning to Lincolnton.When the automobile driven by Bondurant was about 100 feet from the bridge, and going north, the tractor-trailer combination driven by Sloop at a speed of about 60 to 65 miles an hour going south was coming off the bridge weaving and straddling all three of the highways lines in the center of the highway.Bondurant pulled his automobile off the highway for Sloop to pass, got back on the highway, entered the bridge, and on about the middle of the bridge passed the tractor-trailer combination driven by Prevette at a speed of about 60 to 65 miles per hour going south.As Bondurant was going off the bridge north, he heard Prevette 'hit his brakes.'

As the tractor-trailer combinations coming south approached the bridge, Charles Ray Baker travelling north and following Bondurant slowed down his automobile.Mrs. Bernice Baker Stafford, a sister of Charles Ray Baker and a passenger in his automobile on the front seat, testified as follows, as a witness for plaintiff: 'The Bill Bondurant car was off of the highway to keep from being hit by the first tractor-trailer as it came off of the bridge.Naturally, our car was proceeding on down the highway at a slower rate of speed all the time.My brother went to the right side of the road, the east side, with the right front wheel.The Sloop tractor-trailer at that time was coming directly at us over on our side of the road.He was 4 or 5 feet over the center line on our side.The tractor was headed directly at us.Mr. Sloop was driving the first tractor-trailer.He was trying to pull it back on his side of the road.The trailer part of that tractor was leaning toward us.I don't remember the tractor part, but the trailer just loomed up at us, and I felt this terrific jolt and a loud squishing of air, and I looked up and the second tractor-trailer hit us.In my opinion, the first Sloop tractor-trailer was making 60 or 65 miles an hour when it passed us.As we were slung back into the highway, the Prevette tractor-trailer was coming off of the bridge.The next thing I remember was that I got up off of the road.I was partly on the highway and partly on the shoulder on the west side.The right front wheel of the car of Charles Ray Baker was leaving the highway on the east side, and we were a little better than 125 feet from the south edge of the bridge as he left the highway.'

When Bondurant drove his automobile on the bridge, he saw through his rear view mirror Charles Ray Baker's automobile leave the highway on the east side at a point 100 or 115 feet south of the bridge.He did not look further as he was meeting the Prevette tractor-trailer on the bridge.When Bondurant drove his automobile off of the bridge, he looked again in his rear view mirror, and saw the Baker automobile coming back into the higway at about a 90-degree angle toward the center line.

The tractor-trailer combination driven by Sloop did not stop, and left the scene.Bondurant went back to the wreck.When he arrived, the Prevette tractor-trailer was over in a field west of the highway.The Baker automobile was at an angle headed north about 8 feet on the west side of the trailer.Charles Ray Baker was lying in the center of the highway dead.Also killed in the wreck were Mrs. Stafford's son, and Charles Ray Baker's daughter.

W. L. Garrison, a state highway patrolman and a witness for plaintiff, arrived at the scene of the wreck shortly after it occurred.He testified without objection in substance: that he determined the point ofimpact between the Baker automobile and the Prevette tractor-trailer combination to be about 42 feet from the end of the bridge, and when he arrived, the Prevette tractor-trailer combination was about 85 feet from the point of impact, and off the highway.Baker's automobile was down the embankment 8 feet north of the drive wheel of the tractor.The front part of the Prevette tractor was badly damaged, mostly on the right side.The Baker automobile was extensively damaged, and beginning at the rear seat was badly damaged and mashed in, and the top was mashed in and pinched together.The tractor-trailer combinations driven by Sloop and Prevette were about 47 feet long and the weight of each combination was in excess of the one-ton limit.At the scene defendant Prevette told Garrison he was the only tractor-trailer involved, and that he was not following another tractor-trailer.The patrolman carried him from the scene to a hospital.There, in the presence of Mrs. Bernice Baker Stafford, he said to Garrison he was following another...