Daughtry v. Turnage

• Decision Date: 29 August 1978
• Docket Number: No. 95,95
• Court: North Carolina Supreme Court
• Parties: William Corbie DAUGHTRY, Jr. v. William Franklin TURNAGE and J. A. Eubanks and Son, Inc.

Page 788

246 S.E.2d 788

295 N.C. 543

William Corbie DAUGHTRY, Jr. v. William Franklin TURNAGE and J. A. Eubanks and Son, Inc.

No. 95.

Supreme Court of North Carolina.

Aug. 29, 1978.

Bowen & Lytch, P. A. by R. Allen Lytch, Dunn, for plaintiff-appellant.

McLeod & Senter, P. A. by William L. Senter, Fayetteville, for defendant-appellee.

COPELAND, Justice.

The sole question presented for our consideration on this appeal is whether the trial court erred in denying defendant's motion for a directed verdict. In passing upon a motion for a directed verdict under G.S. 1A-1, Rule 50, the trial court is confronted with substantially the same question as was formerly presented by a motion for judgment of involuntary nonsuit. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). In this situation, the court must consider the evidence in the light most favorable to the non-movant, deeming all evidence which tends to support his position to be true, resolving all evidentiary conflicts favorably to him and giving the non-movant the benefit of all inferences reasonably to be drawn in his favor. Summey v. Cauthen, 283 N.C. 640, 197 S.E.2d 549 (1973). A directed verdict on the ground of contributory negligence should be granted only when this defense is so clearly established that no other reasonable inference can be drawn from the evidence. Brown v. Hale, 263 N.C. 176, 139 S.E.2d 210 (1964). We have determined that the evidence of plaintiff's contributory negligence, while strong, is not so overpowering as to preclude all reasonable inferences to the contrary; therefore, the decision of the Court of Appeals reversing the trial court's denial of defendant's motion for a directed verdict must be reversed.

When considered in the light most favorable to him, plaintiff's evidence tends to show the following:

On 1 May 1974 at approximately 12:00 noon, plaintiff's tractor-trailer truck, driven by his agent, was traveling east on N. C. Highway 55 near the community of Seven Springs. In this vicinity, Highway 55 is a two-lane paved road. The weather on this occasion was clear, with no fog, rain or overcast.

As plaintiff's truck was leaving a school zone just outside Seven Springs and approaching the city limits, it was following an eastbound pickup truck which had pulled out in front of it one-half mile earlier. The speed limit in the school zone was 35 miles per hour and plaintiff's truck was traveling at that speed when it exited the school zone. At this time, plaintiff's agent observed defendant's tractor-trailer truck some 900 to 1000 feet away, loaded with fertilizer and traveling toward him in the opposite lane at a moderate rate of speed. The next time plaintiff's agent noticed defendant's vehicle, it was about 500 feet away and had begun to cross the yellow line and move into the eastbound lane. When plaintiff's vehicle approached to within 300 feet of defendant's truck, the latter abruptly whipped completely over into the eastbound lane, apparently seeking to swing out in order to make a right turn into a nearby private driveway.

Plaintiff's agent had maintained a following distance of 150 feet between himself and the pickup from the time it had pulled out in front of him and had held his speed at 35 miles per hour after his initial sighting of defendant's truck; however, when he saw defendant's truck drive completely into the eastbound lane, he slowed to approximately 30 miles per hour, as did the pickup. Defendant's truck suddenly stopped, blocking the entire road. At this point the pickup truck still some 150 feet in front of plaintiff's vehicle, began to stop. Plaintiff's agent locked all his brakes and, finding that he could not stop in time to avoid striking the pickup and pushing it into the load of fertilizer, steered his vehicle off the road to the right and into a side ditch in order to avoid colliding with the pickup. As plaintiff's vehicle proceeded down the side ditch, it struck a 55 miles per hour speed limit sign and then collided with a concrete culvert, damaging the right front wheel area of the tractor and turning the trailer over on its side. The pickup, meanwhile, managed to stop without hitting defendant's truck.

As plaintiff's truck, loaded with approximately 70,000 pounds of wood chips, had approached the scene of the accident, it had been coming out of a slight curve, and, according to the record, traveling down a 34 to 40 degree hill.

Plaintiff's agent had been driving a truck over this same route for 10 years prior to the accident and was very familiar with the area. In addition, plaintiff's agent testified on cross-examination that he could have stopped if his truck had been empty or if he had been running slower. Plaintiff's agent also indicated that to his knowledge it was not unusual for a tractor-trailer truck to have to swing out wide to make a sharp turn.

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