Cummins v. Southern Fruit Co.

• Decision Date: 28 November 1945
• Docket Number: 523
• Citation: 36 S.E.2d 11,225 N.C. 625
• Parties: CUMMINS v. SOUTHERN FRUIT CO., Inc., et al
• Court: North Carolina Supreme Court

36 S.E.2d 11

225 N.C. 625

CUMMINS v. SOUTHERN FRUIT CO., Inc., et al

No. 523

Supreme Court of North Carolina

November 28, 1945

This is an action to recover damages for personal injury sustained in a collision on the Concord-Charlotte Highway between a truck driven by plaintiff and one owned by the corporate defendant and being operated by its servant. The plaintiff recovered in the court below, and defendants appealed. The only question presented on the appeal is whether nonsuit should have been granted in the court below on the ground of plaintiff's alleged contributory negligence, which it is contended is shown in his own evidence.

Pertinent to this contention, the facts, as stated in plaintiff's evidence, are as follows:

R. V McCombs testified for plaintiff that witness worked in Burlington and drove back and forth to his work. On this occasion he was driving South and the bakery truck driven by plaintiff was going North. Witness saw the fruit truck parked on the highway headed toward Concord, all four wheels; no sign of light. It was dark, foggy, rainy; it was between 6:00 and 6:15 o'clock in the morning. The car in which witness was riding and plaintiff's truck were meeting.

'The car I was riding in at the time of the collision I would say was 15 feet from the parked truck when the collision occurred, south of the parked truck I'd say a car length. My judgment is that Mr. Cummins' truck was running thirty miles an hour. There were no lights of any kind, buoys, or anything on the road to give warning to the public that this truck was there. We didn't see the truck ourselves until we was just right on it. I couldn't say whether anybody was in the truck. As we stopped our car I would say within one hundred and fifty or two hundred feet we stopped and walked back to the scene of the accident, and I imagine it taken us two or three minutes to get back and this colored fellow that was driving, he was just getting out of the truck. Of course we went running back and he was rubbing his eyes and said 'Someone ran into me.' We seen a sack of potatoes and it was so dark we thought it was a person laying there. It was laying in the highway. The colored man was coming to the back of the truck. He was along beside the parked truck. He said 'Someone ran into me.' I says 'No wonder.' He didn't tell me what his name was. I didn't ask the name. I said 'Why don't you get that thing off the highway.' He said he didn't get off because he was afraid he'd stick up. I could see the shoulder of the road to the right of where the truck was parked clearly after we stopped. He had sufficient room to get the truck off of the highway onto the shoulder though it was very muddy. It had been raining for about a day and night at that time. He had sufficient room. I told him I'd rather pull it out in the field. When I saw him he was walking back towards the bakery truck that ran into him. He was just rubbing his eyes. He didn't appear to be one bit hurt. I had never seen Mr. Cummins before. Today is the first time I ever spoke to him. I thought he was a dead man at the time I saw him. We tried to get him from the wrecked truck and we couldn't get the doors open, and then we went from the back of the bakery truck and unloaded his pies and everything he had in it and prized the seat loose from behind.'

On cross-examination:

'It was very dark and foggy and misting. It was very difficult to see any distance in front of you. I would say we were traveling thirty to thirty-five, somewhere along there. It was almost impossible to go any faster, the condition of the weather. I couldn't give you a definite feet how far in front of you that you could see that morning, but you couldn't see too far. You can imagine yourself what you can see on a foggy morning. It was very foggy; that would just be hard to make an estimation of that. It was a kind of a fog and mist together there. The trucks was not together. I would say they were 20 feet apart at the time. I don't know whether the fruit truck moved up or whether the pie truck bounced back off of it. * * * The darky didn't say when the lights went out. I asked him why he didn't put some flares out. He said he didn't have any. He made no statement. The road there was wet. It was not only a heavy fog, but there was a mist with it. I made no examination of the marks or anything of that kind. I don't know whether there were any skid marks on the road or not. My attention was first attracted to the pie truck as we were going south, we saw the truck and we made the statement, said 'someone's going to hit that truck there sits a truck with no lights,' and we saw this approaching car, or truck rather, of course we didn't know what it was, otherwise, we saw the lights of the truck. That was the pie truck. When we first saw that, I would say we was 50 or 75 feet from this parked truck, and just as we got even with it I said 'There's the first one hits it,' that's the statement I made, I said 'There's the first one hits it,' and it just crashed at the time. I couldn't tell whether the pie truck slowed up. It was very poor vision there, but I couldn't say whether it slowed up or not. The crash is all I heard. * * The pie truck passed us about fifteen feet south of the truck that was standing on the road. That's when I got the impression as to its speed approaching it would be hard to say what it was, just my estimation. I would say he was going approximately 30 miles an hour. That is when the pie truck was within fifteen feet of the rear of the truck my opinion is he was making 30 miles an hour. I can't tell how fast he was running down the road because I couldn't see except the lights. To my estimation he was going at a very moderate speed. It was 'most impossible to go fast on a morning like that. I would say as he passed he was going in my opinion about 30 miles an hour. I'd say it would be approximately 30.'

Clay Long testified for plaintiff:

'I was driving the car coming south to go to the Rubber Plant on this particular night. Mr. McCombs was in the front seat with me. Out here about seven miles from town. I saw the truck that was standing still on the highway. All four wheels of that truck was on the road. No lights on it at all. There were not any signals or buoys in front or back of it to warn people that it was there. I'll say the parked truck was 50 or 75, probably a 100 feet back when I first saw it. At that time I saw this approaching car driven by Mr. Cummins. We were meeting each other. My car at the time that Mr. Cummins' car hit the truck was about the length of the car past the parked truck. I stopped. The lights on Mr. Cummins car looked like they were good. When I first saw the darky he was coming from the parked truck back towards the wreck. I never did speak to him at all. Mr. McCombs talked to him. I saw Mr. Cummins, I didn't know him prior to that time. I saw the darky rubbing his eyes. I noticed to the right of his parked truck the shoulder of the road. There was room enough for him to get the truck off and park it on the side of the road. There were no other lights, street lights or anything like that. It was in the country. * * * As we approached this parked truck, although its headlights were not burning, the lens of its headlights were facing us; that's the first thing I could see of the parked truck, my lights reflecting on the lens of the headlights of the parked truck. That's the first I seen of the truck, then I seen the bulk of the truck as I approached. I couldn't state the speed of Mr. Cummins' truck, but he was running I think within the law, around 30 miles an hour. I don't know Mr. Cummins. * * * I will say I was within about 75 or 100 feet probably of this parked truck when my lights were reflected on the lens of its headlights. I was maybe forty feet away. I couldn't say exactly, before I could tell exactly what it was parked on the road. I was about the length of the car that I was driving past the truck when the collision occurred. When the collision occurred, I was about the length of my car past the truck; so that the crash came when I was a few feet from the back of the truck. I did not have my bright lights on. I dimmed my lights for Mr. Cummins and he dimmed his lights. As I approached, Mr. Cummins evidently saw me because he dimmed his lights, and I dimmed by lights as we approached. We both dimmed our lights. * * * The weather was misty, foggy and drizzling rain. It was real dark. The pie truck and the fruit truck when I got out and went back were approximately 20 feet apart. The fruit truck was approximately twenty feet farther north than the pie truck. I don't know which one moved, whether the pie truck went backwards or the fruit truck forward.'

Mr. N. G. McGuirt testified for plaintiff:

'On this morning I had occasion to go out on the Concord Road, going to Concord. It was between five-thirty and quarter of six. I saw this truck of the defendant Fruit Company. It was sitting on the highway, headed towards Concord, north. There was no car coming meeting me at that time. I almost hit the truck myself; there wasn't any lights. It didn't have any lights on it. Didn't have any lights about it. I said something to the colored man in the truck but he didn't hear me, I don't imagine. He was in the truck. All of the truck was on the hard surface. At that particular point that just a two-lane highway.'

V. E. Cummins, the plaintiff, testified:

'On the morning of September 29, 1944, I left Charlotte between ten and fifteen minutes to six. I was driving a Dodge half-ton truck. Nobody was with me. Had my truck loaded with pies--a one-half ton panel truck. I was going to Concord to deliver bakery goods, pies. The weather was rainy and foggy. I was proceeding on Highway...