Cozart v. Hudson

• Decision Date: 15 January 1954
• Docket Number: No. 753,753
• Citation: 239 N.C. 279,78 S.E.2d 881
• Court: North Carolina Supreme Court
• Parties: COZART, v. HUDSON et al

Page 881

78 S.E.2d 881

239 N.C. 279

COZART, v. HUDSON et al.

No. 753

Supreme Court of North Carolina

Jan. 15, 1954

J. Grover Lee, Durham, for defendants Harvard H. Hudson and H. H. King, Jr., appellants.

Jack C. Woodall, Durham, for plaintiff Vern E. Cozart, appellee.

ERVIN, Justice.

The only assignment of error requiring discussion is based on the disallowance of the motion of the defendants to dismiss the plaintiff's action upon compulsory nonsuit after all the evidence on both sides was in.

'In determining the legal sufficiency of testimony to withstand a motion for a compulsory nonsuit after all the evidence on both sides is in, the testimony is interpreted most favorably to plaintiff, and most strongly against defendant. Thus all facts in evidence, whether introduced by plaintiff or defendant, which make for the plaintiff's claim or tend to support his cause of action are assumed to be true. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Furthermore, plaintiff is given the benefit of every inference favorable to him that can be legitimately drawn from such facts. Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757 [17 A.L.R.2d 881]. If there are contradictions or discrepancies in the testimony offered by plaintiff, they are resolved in his favor. Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377. Any evidence presented by defendant which contradicts that of plaintiff, or tends to establish a different state of facts is ignored. Bundy v. Powell, supra. ' Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280, 282.

When the testimony at the trial is subjected to these rules, it makes out this casefor the plaintiff:

1. United States Highway 64, which connects the Town of Wendell on the east and the City of Raleigh on the west, is a much traveled public highway having two traffic lanes, a northern one for westbound traffic, and a southern one for eastbound traffic.

2. Sometime before 8:30 P.M. on November 23, 1951, a large motor truck, which was proceeding westward along the highway, became disabled and stalled, blocking the northern traffic lane at a point five miles west of the Town of Wendell.

3. Since he was unable to move his disabled truck from the traveled portion of the highway, the driver put out burning flares to warn approaching motorists of its presence and location in the northern traffic lane.

4. Subsequent to these events, the automobile owned ad operated by the plaintiff, which was the forward vehicle, and the tractor-trailer combination owned by the defendant King and operated by the defendant Hudson, which was the following vehicle, traveled westward on the highway at the same moderate speed toward the disabled truck.

5. The tractor-trailer combination and its cargo weighed 50,000 pounds. Although he knew that this great weight rendered it impossible for him to bring the tractor-trailer combination to a stop 'in less than 60 feet,' the defendant Hudson persisted in following the plaintiff's automobile at a distance of only 30 feet.

6. The burning flares indicating the presence and marking the position of the disabled truck in the northern traffic lane became visible to the drivers of the westbound vehicles when they were 300 feet away. This circumstance was sufficient to notify the defendant Hudson that he should reasonably anticipate that the plaintiff would be compelled to bring his automobile to a sudden stop behind the disabled truck in case his automobile and an eastbound motor vehicle neared the truck at the same time. Despite this, Hudson took no steps to lengthen the space between the tractor-trailer combination and the plaintiff's automobile.

7. On his arrival at a point 150 feet from the disabled truck, the plaintiff applied his brakes and slackened his speed preparatory to stopping his automobile. The plaintiff took this course because the headlights of an approaching motor vehicle moving eastward along the southern traffic lane made it plain to all in view that the plaintiff's automobile and the eastbound motor vehicle would reach the disabled truck at the same time, and that the plaintiff's automobile would collide with either the front of the eastbound motor vehicle or the rear of the disabled truck unless it was stopped on the northern traffic lane behind the disabled truck

8. The plaintiff did not give a hand signal conforming to the statute embodied in G.S. § 20-154 to notify the defendant Hudson of his intention to stop his automobile.

9. The defendant Hudson was confronted, however, by clearly visible circumstances, such as the plaintiff's blinking taillights, the plaintiff's decreasing speed, the blockage of the northern traffic lane by the disabled truck, and the headlights of the motor vehicle moving eastward along the southern traffic...