Dawson v. Seashore Transp. Co.

• Decision Date: 02 March 1949
• Docket Number: 91
• Citation: Dawson v. Seashore Transp. Co., 230 N.C. 36, 51 S.E.2d 921 (N.C. 1949)
• Parties: DAWSON v. SEASHORE TRANSP. CO., Inc.
• Court: North Carolina Supreme Court

51 S.E.2d 921

230 N.C. 36

DAWSON v. SEASHORE TRANSP. CO., Inc.

No. 91

Supreme Court of North Carolina

March 2, 1949

Civil action to recover for personal injuries alleged to have been sustained as a result of the negligence of the defendant.

It is disclosed by the plaintiff's evidence that he was driving his automobile between 7:00 and 7:30 o'clock p m., on the night of 7 December, 1946, along U. S. Highway 301-A, in the corporate limits of the town of Wilson.The highway is four lanes wide and the north and south lanes are separated by a parkway.The plaintiff was proceeding north on his right-hand side of the northbound lane of the highway at about 20 or 25 miles an hour.Foggy weather had prevailed for several days.When the plaintiff was nearing the underpass of the Norfolk and Southern Railroad, going down grade, he ran into a streak of dense fog mixed with smoke, coming from the town dump nearby.The fog and smoke made visibility so poor that he could see only about 9 feet in front of him.He immediately slowed down to 15 or 20 miles per hour, and after proceeding 6 or 8 yards in this dense fog and smoke, he ran into the rear end of the defendant's bus, which was stopped about the center of the northbound lane without lights, flares or other signals as a warning of its presence.Almost immediately, and before the three occupants of the plaintiff's car could get out, two other cars following plaintiff's vehicle, ran into the back of plaintiff's car, knocking it back into the defendant's bus.

At the close of plaintiff's evidence the defendant moved for judgment as of nonsuit.The motion was allowed and the plaintiff appealed to the Supreme Court.

Connor Gardner & Connor, of Wilson, for plaintiff.

Lucas & Rand and Z. Hardy Rose, all of Wilson, for defendant.

DENNY Justice.

The sole question presented on this appeal is whether or not the plaintiff, under the facts and circumstances disclosed by the evidence, was guilty of contributory negligence as a matter of law?We do not think so.

The appellee is relying upon Parkway Bus Co. v. Coble Dairy Products Co.,229 N.C. 352, 49 S.E.2d 623;Tyson v Ford,228 N.C. 778, 47 S.E.2d 251;Riggs v. Gulf Oil Corp.,228 N.C. 774, 47 S.E.2d 254, andSibbitt v. R. & W. Transit Co., 220 N.C. 702, 18 S.E.2d 203.

In the last cited case, Sibbitt was driving about 50 or 55 miles per hour.He saw blankets of smoke across the highway coming from fires on the side thereof, and put on his brakes and slowed down to approximately 30 or 40 miles per hour.He then proceeded about 50 or 60 yards in the smoke, when he saw a light flare on the left side of the road, which he mistook for an approaching automobile.When he saw this light he realized that the 'smoke was a solid wall', and at the same time he saw the light 'flare'he saw the 'rear end of an oil truck', and immediately applied his brakes, but his automobile collided with the rear end of the tanker.In Riggs v. Oil Corp., supra, the plaintiff testified he was driving his car with the dimmers on, not exceeding 25 miles an hour along a street in the City of Kinston, in foggy weather with mist and rain, and could not see 5 feet ahead of him 5 feet above the ground.He also testified that under the existing weather conditions he could have seen an object down the highway for about 200 feet, but with the beam of his lights shining down and under the truck he did not see it in time to even attempt to put on his brakes.In Tyson v. Ford, supra, atmospheric conditions played no part.It was a clear, cold night, the plaintiff according to his testimony, was operating his car too rapidly to stop it or turn to the left and avoid hitting a truck parked on the highway.The plaintiff was driving 40 to 45 miles per hour when he hit the truck.He testified he was familiar with the road 'and as we rounded one curve and hit a small hill, then went over the hill, I suddenly saw a truck in the road ahead of me. * * * If I had seen it in time, I could have turned to the left and avoided striking it.* * * No car (was) coming from the opposite direction. ' In Parkway Bus Co. v. Coble Dairy Products Co.,supra[229 N.C. 352, 49 S.E.2d 624], the facts disclose that the night was 'dark, rainy and foggy'.Shortly before the collision the bus met a truck travelling in the opposite direction with lights dimmed, but that vehicle had passed before the collision occurred.The driver of the bus testified he was within 8 or 10 feet of the parked truck of the defendant, before he saw it and was too close to stop or turn.According to the testimony of the highway patrolman, with ordinary automobile lights under the conditions then existing normal vision was 75 feet.A further examination of the...