Caulder v. Gresham
| Decision Date | 02 June 1944 |
| Docket Number | 739. |
| Parties | CAULDER v. GRESHAM. |
| Court | North Carolina Supreme Court |
Civil action to recover damages for personal injuries sustained in an automobile-truck collision.
Prior to 6 a.m., on Sunday, December 6, 1942, defendant's driver stopped his oil tanker truck on Highway 70, headed West, about two miles west of Burlington, to look after a spare wheel. The engine would not start. He left the truck off the pavement except that the left rear trailer wheels were about two feet on the pavement, and the left rear corner of the trailer extended about 4 1/2 feet over the pavement, which was 22 feet wide. The driver went to Greensboro, leaving the truck unattended.
About 6 a.m., plaintiff and five companions were on their way to Pilot Mountain in an automobile driven by one Frank Elkins traveling 30 or 35 miles per hour. It was before daylight the weather was foggy, and a light 'blowing' rain was falling so that Elkins could not see ahead much more than the length of his car. There were two flare pots. One was burning dimly, but the one to the rear of the truck was not lighted. Elkins did not see the truck until he was within a car length. He put on his brakes, but could not stop. He ran into the rear of the truck, knocking it several feet ahead. Plaintiff suffered certain personal injuries.
When the cause came on for trial in the court below issues tendered by defendant were submitted to the jury. They were answered in favor of plaintiff. Judgment was entered on the verdict, and defendant appealed.
Thos. C. Carter and John H. Vernon, both of Burlington, for plaintiff, appellee.
Cooper & Sanders, of Burlington, for defendant, appellant.
The defendant's driver left his truck unattended, partly on the paved or improved portion of a State highway between sunset and sunup without displaying flares or lanterns not less than two hundred feet to the front and rear of the vehicle, in violation of the provisions of G.S. § 20-161. That this was an act of negligence is not seriously contested.
The driver of the car in which plaintiff was riding was operating his automobile at 30 or 35 miles per hour, under conditions which made it impossible for him to see more than a few feet ahead. He was outrunning his lights. Although the jury found otherwise, that he was guilty of negligence seems to be apparent.
Was the negligence of Elkins, the operator of the passenger car, such as to constitute, as a matter of law, the sole proximate cause of the injury sustained by plaintiff's If so, judgment of nonsuit should have been entered.
The rule controlling the determination of this question is stated by Stacy, C. J., in Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, and may be properly divided into two parts:
(1) Where a second actor (Elkins) has become aware of the existence of a potential danger created by the negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, the first tort-feasor (defendant) is relieved of liability, because the condition created by him was merely a circumstance of the accident and not its proximate cause; but
(2) Where the second actor (Elkins) does not become apprised of such danger until his own negligence, added to that of the existing perilous condition, has made the accident inevitable, the negligent acts of the two tort-feasors are contributing causes and proximate factors in the happening of the accident and impose liability upon both of the guilty parties. See also Kline v. Moyer, 325 Pa. 357, 191 A. 43, 111 A.L.R. 406; Green, Rationale of...
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