Dezern v. Asheboro City Bd. of Ed., 523

• Decision Date: 20 November 1963
• Docket Number: No. 523,523
• Citation: 260 N.C. 535,133 S.E.2d 204
• Parties: Jeremlah Edgar DEZERN v. ASHEBORO CITY BOARD OF EDUCATION, Ernest Isley, and John N. Ogburn, Jr., Guardian Ad Litem for Ernest Isley.
• Court: North Carolina Supreme Court

Page 204

133 S.E.2d 204

260 N.C. 535

Jeremlah Edgar DEZERN v. ASHEBORO CITY BOARD OF EDUCATION, Ernest Isley, and John N Ogburn, Jr., Guardian Ad Litem for Ernest Isley.

No. 523

Supreme Court of North Carolina.

Nov. 20, 1963

J. Harvey Luck and Miller & Beck, Asheboro, for plaintiff.

Jordan, Wright, Henson & Nichols and G. Marlin Evans, Greensboro, for defendants.

PER CURIAM.

This action was instituted by plaintiff to recover for personal injuries and property damage which resulted when his automobile collided with the rear of a school activities bus.

Verdict was favorable to plaintiff. The defendant Board of Education carried liability insurance covering the bus and thereby waived governmental immunity from liability to the extent of the insurance policy limits. G.S. § 115-53. The amount of the judgment is within policy limits.

Defendants appeal and assign as error the denial of their motion for nonsuit.

The evidence, taken in the light most favorable to plaintiff, is summarized as follows:

Defendant Isley, agent of defendant Board of Education, was operating the bus (with one passenger aboard) westwardly on U. S. Highway 64, a few miles east of Asheboro, N. C., on the night of 2 February 1961. He was having 'ignition' trouble. The motor cut off at Woody's Drive-in. Isley got the motor started and after he had driven about one-half mile in the direction of Asheboro the motor cut off again and the lights on the bus went out. The bus was left standing in the north lane facing west, without lights. It was 8 feet wide and 12 feet high, and obstructed practically the entire lane. It was painted yellow. The highway is 23 or 24 feet wide. Isley and the passenger left the bus and went to a nearby house to telephone for help. They returned to the bus and attempted to push it. Before they could move it, the plaintiff ran into the rear of the bus. No one attempted to flag traffic or give warning of any kind. The bus had been standing in this position about 25 minutes. The highway was level and dry; the weather was cloudy and there was fog; the night was dark. The collision occurred about 6:45 P.M. When plaintiff, driving westwardly, was about 200 years from the bus, and before he knew of its presence, he saw approaching a line of eastbound traffic, consisting of 8 to 10 cars. Plaintiff's speed was 35 miles per hour; the line of traffic was moving about 40 to 45 miles per hour. The speed limit was 55 miles per hour. The first car in the line dimmed lights and plaintiff did likewise. Some of the meeting cars did not dim their lights. Being somewhat blinded by the lights, plaintiff watched the edge of the hardsurface, the outline of which was clear, to guage his direction. Plaintiff reduced speed and at the time of the collision was going 20 to 30 miles per hour. When he passed one of the cars with bright...