Coleman v. Burris, 196

• Decision Date: 13 October 1965
• Docket Number: No. 196,196
• Court: North Carolina Supreme Court
• Parties: Marcus Leroy COLEMAN v. Samuel L. BURRIS and Sam Hatten.

Page 241

144 S.E.2d 241

265 N.C. 404

Marcus Leroy COLEMAN v. Samuel L. BURRIS and Sam Hatten.

No. 196.

Supreme Court of North Carolina.

Oct. 13, 1965.

Frank P. Cooke, Childers & Fowler, by H. L. Fowler, Jr., Gastonia, for plaintiff appellant.

Hollowell & Scott, by L. B. Hollowell, Jr., Gastonia, for defendant appellees.

PARKER, Justice.

Plaintiff's evidence tends to show these facts: About 11 p. m. on 29 January 1964 he was driving his 1963 Volkswagen Karmann Ghia, which is about six and a half feet wide, north on North Broad Street in the city of Gastonia at a speed of 25 or 30 miles an hour. He was alone in the car. North Broad Street is an asphalt paved street 20 or 21 or 22 feet wide. On the eastern side of the pavement of North Broad Street in the area where the collision hereafter set forth occurred is a dirt shoulder about four feet wide and beyond the shoulder is a ditch about eighteen inches to two feet deep. The weather was cold and clear, and it was a dark night. North Broad Street is used for two-way traffic. North Broad Street runs north and south and Harris Street makes a 'T' intersection with it from the east. At this intersection hanging over the middle of it is a street light. The collision here occurred about 100 to 125 feet north of this intersection. Where the collision occurred, North Broad Street is straight and level for about three hundred yards to the south.

Plaintiff testified as follows on direct examination:

'I came straight out Broad Street and crossed Franklin on my way home, and I got in the vicinity of Harris St. there and I was meeting a car. The car that I was meeting was traveling south. The other car had his lights on bright. I blinked mine, blinked them back dim. He kept on going. I pulled over a little past the center of the road, continued on. I guess I was probably doing 25 or 30 miles an hour. The car passed and the next thing I knew I was on the truck. In response to your question as to why I did not see the truck, well, to begin with, the other car's lights were on bright and, of course, I didn't see the truck until I was right on it. I was meeting the car. He had his lights on bright. I flicked mine on bright, back on dim. He did not dim his lights. My lights were on dim all the way. The car passed. The next thing I knew I was right on the truck. In my opinion, my car traveled roughly 20 or 25 feet after the other vehicle passed me before my vehicle collided with the truck. I did not apply the brakes. In my opinion, my car traveled 25 to 30 feet after striking the truck until it came to a stop.'

He testified on cross-examination:

'I was 25 feet away from Mr. Hatten's truck when I first saw it after this other car passed me. When I first saw it when I was 25 feet away, the first thing I did was to swing to the left as hard as I could. I tried to apply the brakes, but I never did apply them. * * * I saw him when he was 150 feet from my automobile and at that time he had his lights on bright. He blinded me when I first saw him. I just flicked my lights from bright to dim and then back on to bright and during that time I was, of course, blinded. * * * I was going about 30 miles an hour prior to the time that the accident happened. I was going about 30 miles an hour when the lights blinded me. I was going about 30 miles and hour when I passed the automobile whose lights blinded me. I probably had slowed down a little when I had an impact with Mr. Hatten's truck because I only had to take my foot off the accelerator pedal. I hadn't hit my brakes. I would say I was probably going around 25 miles an hour. * * * In response to your question as to why I didn't stop right then and decrease my speed when I was blinded by the lights of this oncoming car, I wasn't doing a dangerous rate of speed to start with, and, of course, I pulled over to my right. I was still in my lane of travel. I didn't pull off onto the shoulder of the road; I stayed n the paved portion. I didn't stop when I was blinded because I don't recall anybody ever stopping for a car that won't dim his lights, as far as coming to a dead stop. I testified I didn't even hit my brakes. I kept on going at the same speed. I believe the speed limit there would be 35. And I was going roughly 30 miles an hour.'

The truck plaintiff's car collided with was 'a dual-wheel truck, bed truck, loaded with bricks,' and it was standing still with its left rear dual wheels on the pavement of North Broad Street, and with the left rear of the bed of the truck about four or five feet on North Broad Street in plaintiff's lane of traffic. Plaintiff testified on cross-examination: 'The truck was angled in, yes, sir. It wasn't pulled parallel to the road, it was angled. The right front wheels were not in the ditch. There was no actual ditch there. There was a bank. This area was 18 inches to two feet beneath the surface. That's where the front wheels were when I saw it. (Ditch labeled 'Ditch, four feet from pavement.')' After the collision a board an inch and a half thick and about three feet long extended out of plaintiff's automobile. The right side of plaintiff's car struck the left rear of the bed truck. Plaintiff examined the truck after the collision, and it had no reflectors. When his lights were on low beam plaintiff thinks he could see 30 feet ahead of him, and when his lights were on high beam roughly 55 or 60 feet.

Harold Cletus Truelove, a police officer in Gastonia, arrived at the scene of the collision about ten minutes after it occurred. He testified in effect that upon arrival he saw a dual-wheel truck, bed truck, loaded with bricks, and the left rear wheels were sitting out in the road and the left rear corner of the bed was sticking out into the road about four to five feet. He does not remember seeing any reflectors or any lights on the rear end of the truck. Jacob Howard Prather, Jr., a police officer of the city of Gastonia, arrived at the scene of the collision with officer Truelove. He testified in effect that when he arrived at the scene he did not observe any lights on the rear of the truck.

In the collision plaintiff received personal injuries and his car was damaged.

The parties stipulated that the collision in the instant case occurred on North Broad Street in the city of Gastonia.

In his original complaint in paragraph seven plaintiff alleges that the defendants were guilty of negligence in parking their truck on North Broad Street in the city of Gastonia in violation of G.S. § 20-134, G.S. § 20-129(d), and G.S. § 20-161, and in having no reflectors or red lights on the rear of the truck, and in paragraph eight of his complaint he alleges that the collision resulting in personal injuries to himself and damage to his car was proximately caused by such negligence of the defendants. At the February 1965 Session of court, before the trial at the May 1965 Session, plaintiff was permitted by the court in its discretion to amend his complaint by deleting paragraph seven therefrom and inserting in lieu thereof a new paragraph seven in which he alleges that the defendants were guilty of negligence in parking their truck on North Broad Street in the city of Gastonia in violation of G.S. § 20-134, G.S. § 20-129(d), and in violation of the following sections of the ordinances of the city of Gastonia, to wit, Sec. 23-109(a)(15), Sec. 23-111(a), and Sec. 23-111(c), and in having no reflectors or red lights on the rear of the truck. Defendants filed an answer to the amended complaint denying all of its allegations of negligence.

The following appears in the record:

'PLAINTIFF OFFERED into evidence the CODE OF ORDINANCES of the city of Gastonia, North Carolina, adopted by the City Council of the City of Gastonia on September 16, 1958, effective October 12, 1958, Section 23-109, entitled 'Prohibited places; no signs required. Article 13, Stopping, Standing, or Parking. Division 1. Prohibited in Specified Places, for Certain Vehicles and Purposes.'

"(a) No person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with law or the directions of a police officer or traffic control device, in any of the following places: Section (15), In a traffic lane that is marked or intended for the movement of traffic so that such vehicle obstructs the passage of other vehicles in the lane.'

'Section 23-111: 'Unlawful Parking. No person owning or having control or charge of a vehicle shall: (a) Abandon or leave standing such vehicle on any street of the city for a longer continuous period than forty-eight hours.'

'Section (c): 'Park any vehicle upon a street or alley in such a manner or under such conditions as to leave available less than ten feet of the width of the roadway for free movement of vehicular traffic.''

In Smith v. Goldsboro Iron & Metal Co., 257 N.C. 143, 125 S.E.2d 377, a case relied upon by defendants, a motor scooter driven by plaintiff collided in the nighttime with a truck parked on the east side of Kornegay Street in the city of Goldsboro. In this case the parties stipulated, 'Kornegay Street does not constitute any part of the highway system.' In the instant case there is no stipulation by the parties to the effect that North Broad Street in the city of Gastonia does not constitute any part of the highway system.

G.S. § 136-66.1 provides in part: 'The State Highway system inside the corporate limits of municipalities shall consist of a system of major streets and highways necessary to move volumes of traffic efficiently and effectively from points beyond the corporate limits of the municipalities through the municipalities and to major business, industrial, governmental and institutional destinations located inside the municipalities.'

Plaintiff has neither allegation nor proof that North Broad Street in the city of Gastonia is a part of the State highway system as set forth in G.S. § 136-66.1. However, his evidence and a...