Burchette v. Davis Distributing Co. of Durham

• Decision Date: 23 November 1955
• Docket Number: No. 386,386
• Citation: Burchette v. Davis Distributing Co. of Durham, 90 S.E.2d 232, 243 N.C. 120 (N.C. 1955)
• Court: North Carolina Supreme Court
• Parties: Glenn M. BURCHETTE v. DAVIS DISTRIBUTING COMPANY OF DURHAM, Incorporated.

Page 232

90 S.E.2d 232

243 N.C. 120

Glenn M. BURCHETTE v.DAVIS DISTRIBUTING COMPANY OF DURHAM, Incorporated.

No. 386

Supreme Court of North Carolina.

Nov. 23, 1955

Hayes & Hayes, North Wilkesboro, for defendant-appellant.

W. H. McElwee, North Wilkesboro, for plaintiff-appellee.

WINBORNE, Justice.

While appellant brings forward for consideration on this appeal several assignments of error, those two, Numbers 2 and 3, based upon exceptions to denial of its motions, aptly made, for judgment as of nonsuit are most strongly stressed.The principal argument advanced is that upon plaintiff's own statement as to the facts of the casehe was guilty of contributory negligence as a matter of law.And defendant relies upon the principle enunciated in Weston v. Southern R. Co., 1927, 194 N.C. 210, 139 S.E. 237, that a motorist must operate his motor vehicle at night in such manner and at such speed as will enable him to stop within the radius of his lights, or within the range of his vision, and that failure to do so is negligence.The principle has been applied in these cases: Baker v. Atlantic Coast Line R. Co., 1933, 205 N.C. 329, 171 S.E. 342;Lee v. Atlantic Coast Line R. Co., 1937, 212 N.C. 340, 193 S.E. 395;Beck v. Hooks, 1940, 218 N.C. 105, 10 S.E.2d 608;Sibbitt v. R. & W. Transit Co., 1942, 220 N.C. 702, 18 S.E.2d 203;Dillon v. City of Winston-Salem, 1942, 221 N.C. 512, 20 S.E.2d 845;Pike v. Seymour, 1942, 222 N.C. 42, 21 S.E.2d 884;Austin v. Overton, 1942, 222 N.C. 89, 21 S.E.2d 887;Montgomery v. Blades, 1943, 222 N.C. 463, 23 S.E.2d 844;Allen v. Dr. Pepper Bottling Co., 1943, 223 N.C. 118, 25 S.E.2d 388;Atkins v. White Transportation Co., 1944, 224 N.C. 688, 32 S.E.2d 209;McKinnon v. Howard Motor Lines, 1947, 228 N.C. 132, 44 S.E.2d 735;Riggs v. Gulf Oil Corp., 1948, 228 N.C. 774, 47 S.E.2d 254;Tyson v. Ford, 1948, 228 N.C. 778, 47 S.E.2d 251;Parkway Bus Co. v. Coble Dairy Products Co., 1948, 229 N.C. 352, 49 S.E.2d 623;Cox v. Lee, 1949, 230 N.C. 155, 52 S.E.2d 355;Brown v. W. B. & S. Bus Lines, 1949, 230 N.C. 493, 53 S.E.2d 539;Wilson v. Central Motor Lines, 1949, 230 N.C. 551, 54 S.E.2d 53;Hollingsworth v. Grier, 1949, 231 N.C. 108, 55 S.E.2d 806;Marshall v. Southern R. Co., 1950, 233 N.C. 38, 62 S.E.2d 489;Morris v. Jenrette Transport Co., 1952, 235 N.C. 568, 70 S.E.2d 845;Morgan v. Cook, 1952, 236 N.C. 477, 73 S.E.2d 296;Harris Express Co. v. Jones, 1952, 236 N.C. 542, 73 S.E.2d 301;Singletary v. Nixon, 1954, 239 N.C. 634, 80 S.E.2d 676;Sheldon v. Childers, 1954, 240 N.C. 449, 82 S.E.2d 396.

In connection with these cases it must be borne in mind that the speed statute, G.S. § 20-141, in effect on 31 January, 1955, the date on which the collision involved in the present action took place, in so far as pertinent to case in hand, declares:

'(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

'(b) Except as otherwise provided in this chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:

'1.Twenty miles per hour in any business district;

'2.Thirty-five miles per hour in any residential district;

'3.Forty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for vehicles other than passenger cars, regular passenger vehicles, pick-up trucks of less than one ton capacity, and school buses loaded with children 4.Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for passenger cars, regular passenger carrying vehicles, and pick-up trucks of less than one ton capacity.

'(c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed * * * when special hazard exists with respect * * * other traffic or by reason of weather * * * conditions, and speed shall be decreased as may be necessary to avoid colliding with * * * any vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care.

'(d) * * *

'(e) The foregoing provisions of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident.'

However, the General Assembly passed an act, Chapter 1145 of 1953 Session Laws amending G.S. § 20-141(e) by adding thereto the proviso 'that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. § 20-141(b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator.'

And in Section 3 of Chapter 1145 of 1953 Session Laws the General Assembly declared that 'All laws and clauses of laws in conflict with this Act are hereby repealed.'

So the courts must interpret the statute as it is written,--the wisdom of it...