Cole v. Koonce
| Decision Date | 28 September 1938 |
| Docket Number | 166. |
| Parties | COLE v. KOONCE et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Warren County; Clawson L. Williams Judge.
Action by C. W. Cole against R. S. Koonce and M. B. Koonce, trading as Motor Transit Company, for injuries sustained in an automobile collision. Judgment of nonsuit entered, and plaintiff appeals.
Reversed.
On a motion to nonsuit, the evidence must be considered in a light most favorable to the plaintiff.
This is an action to recover damages for personal injuries which the plaintiff alleges he sustained through the negligence of the defendants, whose servant had parked a truck partially on the paved highway, with which truck plaintiff's car collided.
The plaintiff testified substantially that on the morning of his injury he was driving his automobile on the paved highway between South Hill, Va., and Wise, N. C., and going southward into the latter village. That the time was about five o'clock in the morning, and the weather was dark and foggy; that he was traveling about twenty-five miles an hour having slowed down in order to pass a large truck coming in the opposite direction; that after passing this truck he discovered another truck, twenty to thirty feet away, parked partially on the paved highway in a diagonal position. The rear of this truck, he testifies, encroached upon the pavement so that the rear left wheel was about two feet thereon, the body of the truck projecting farther toward the center; that there were no lights on the parked car. Plaintiff testified that he attempted to avoid the collision but was unable to do so, and that, upon striking the rear end of the truck, his car was overturned and he was caught underneath the car and lay stretched out on the road; that after remaining in this condition for some time, shouting for help, some men arrived and attempted to extricate him; and while they were doing so, another car approached rapidly, and they were compelled to desist to prevent being run over; that the driver of this car managed to miss the plaintiff by running into a ditch, and plaintiff was finally extricated. He testifies that he sustained a severe and permanent injury which necessitated treatment and kept him in bed for a long time. He testified that with the lights on his car showing down the road through the fog he could see approximately 50 to 75 yards, maybe more; but that under the weather conditions existing that morning he could not exactly have seen an object 75 yards away, but did see well enough to drive safely; that he was unable to say by the aid of his lights how far he could see; that he could see for 30 yards under the foggy weather condition; that he did not think by keeping an ordinary lookout on the highway, conditions were such that with the aid of his lights he could have observed much on the highway at 50 yards unless it had been directly in front of him. He could not tell the exact number of yards or feet. He testified that by his best estimate he could clearly observe the place and location of objects by the aid of his own lights for a distance of about 30 yards.
W. C Thacker testified that he lived nearby, heard the noise of the collision, went to the scene of trouble and helped to extricate Mr. Cole. He said he found the driver of the truck asleep and woke him up; that the front wheels of the trailer part of the truck were clear off the concrete and the left rear wheels were on the concrete, 22 inches, besides the width of the dual wheels, from the edge, the body projecting over the wheels about 6 inches. He stated that the collision occurred in Wise, about 50 feet South of an intersecting highway, and that there were buildings along the highway,-a church, service station, stores, and residences; that the concrete was 18 feet wide, with enough room on the road and shoulder for three cars to stand abreast beside the trailer,-about 20 feet between the trailer and the East edge. The witness testified that there were...
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