Kinsey v. Town of Kenly, 527

• Decision Date: 15 January 1965
• Docket Number: No. 527,527
• Citation: 263 N.C. 376,139 S.E.2d 686
• Parties: W. L. KINSEY, Administrator of the Estate of David Bethea, Deceased, v. TOWN OF KENLY, Carl Durham, Ralph Davis, and Eula Mae Stancil and Kenneth H. Stancil.
• Court: North Carolina Supreme Court

Page 686

139 S.E.2d 686

263 N.C. 376

W. L. KINSEY, Administrator of the Estate of David Bethea, Deceased, v. TOWN OF KENLY, Carl Durham, Ralph Davis, and Eula Mae Stancil and Kenneth H. Stancil.

No. 527.

Supreme Court of North Carolina.

Jan. 15, 1965.

Spence & Mast, Smithfield, for plaintiff appellee.

Smith, Leach, Anderson & Dorsett, Raleigh, and William R. Britt, Smithfield, for Town of Kenly and Carl Durham, defendant appellants.

BOBBITT, Justice.

While the administrator is now the party plaintiff, this is a personal injury action. Hereafter, David Bethea, the injured person--original plaintiff, will be referred to by name (Bethea) rather than as plaintiff or original plaintiff.

Bethea was injured about 12:05 a. m., on Sunday, October 30, 1960, as a result of a collision of three automobiles. The collision occurred on U. S. Highway #301, a main north-south route, which passes through the Town of Kenly, a municipal corporation. Within the corporate limits of Kenly, in the area where the collision occurred, three lanes for northbound traffic (toward Wilson) are separate from three lanes for southbound traffic (toward Smithfield) by a (raised) concrete traffic island or median.

With further reference to the three lanes for northbound traffic: A curbing runs along the east side of said street or highway. The east lane, next to the curbing, is 13 feet wide. The center lane is 10 1/2 feet wide. The west lane is 10 1/2 feet wide.

East of said corbing, between the curbing and the sidewalk, there is a grass strip 4 feet wide; and the (paved) sidewalk is 4 feet wide. East of the sidewalk there is an embankment, ' a decline down into a field.'

North of where plaintiff was injured, Sixth Street, which is forty feet wide from curb to curb, intersects Highway #301.

A car operated by one Everett Joyner, in which Bathea was a passenger, had stopped in the east lane (for northbound traffic) in response to a signal (siren) from a police car operated by defendant Durham. Defendant Davis was a passenger in the police car. Both durham and Davis were police officers of Kenly. Durham stopped the police car to the rear of the Joyner car. Before stopping, the Joyner car and the police car had been proceeding north on Highway #301.

Joyner and Durham, the drivers, got out on the left side of the cars. They were standing near the left rear of the Joyner car, within the east traffic lane. Durham was checking to determine whether Joyner had a driver's license.

Bethea and Davis, the passengers, got out on the right side of the cars. They were standing on the grass strip between the curbing and the sidewalk. A car operated by defendant Kenneth H. Stancil, traveling north, crashed into the rear of the police car, causing the police car to strike the Joyner car and Bethea. Davis, immediately before the crash, had 'jumped right over the embankment down the hill' and was not injured.

It is admitted: (1) Kenneth Stancil, then 20 years of age, was operating the Stancil car as agent, within the family purpose doctrine, of his mother, defendant Eula Mae Stancil, the owner; (2) Durham and Davis were acting in the course of their employment as police officers of Kenly; (3) the Town of Kenly, after due notice thereof, had failed and refused to pay Bethea's claim; and (4) the Town of Kenly had secured liability insurance and to the extent thereof ($50,000.00) had waived its governmental immunity as provided in G.S. § 160-191.1 et seq.

The record contains original pleadings consisting of (1) complaint, (2) answer of Town of Kenly, (3) joint answer of Durham and Davis and (4) answer of Eula Mae Stancil.

The record also contains the pleadings on which the case was tried, to wit: (1) Town of Kenly, Durham and Davis to Twon of Kenly, Duham and Davis to amended complaint; (3) answer of Eula Mae Stancil to amended complaint; and (4) answer of Kenneth H. Stancil to amended complaint.

Included in paragraph 7 of the original complaint, which consists largely of a description of the traffic lanes of Highway $301, is an allegation, 'and * * * the parking of any motor vehicle on said highway within the corporate limits of the Town of Kenly is unlawful and is prohibited.' Appellants, in their answers to the original complaint, admitted the allegations of paragraph 7 thereof. Bethea offered in evidence appellants' said admission of the allegations of paragraph 7 of the original complaint.

Paragraph 7 of the amended complaint contains an allegation that 'no parking' signs had been erected on both sides of Highway #301 in the Town of Kenly 'pursuant to ordinances only adopted by the Town Board of the Town of Kenly on the 2nd day of May, 1960,' and that Durham and Davis 'acted in express violation of the provisions of said Ordinance and the requirements of said 'no parking' signs when they parked the police vehicle * * * on U. S. Highway 301 and when they required * * * Joyner to park his vehicle on U. S. Highway 301.' (Our italics)

It is alleged in paragraph 8 of the amended complaint '(t)hat within the Town of Kenly the parking of any motor vehicle on said Highway 301 within the corporate limits of the Town of Kenly is unlawful and is prohibited.'

In their joint answer to the amended complaint, appellants denied allegations of paragraphs 7 and 8 thereof.

While there was evidence as to the presence and location of 'no parking' signs along Highway #301 within the corporate limits of Kenly, no ordinance relating thereto or otherwise purporting to regulate parking on Highway #301 was offered in evidence.

The amended (as well as original) complaint contains full allegations to the effect the officers were negligent in causing Joyner to stop and 'to park' on Highway #301 and in stopping and 'parking' the police car thereon and in 'parking' the police car at an angle and in such manner that a portion thereof was in and 'fouling the center lane' for northbound traffic.

Allegations of the amended complaint with reference to lights or lack of lights on the police car are as follows: Durham and Davis, 'in parking the police vehicle * * * at an angle on said highway, were negligent and careless in that any lights on the police vehicle did not reflect up and down the highway as required by law, but did reflect and shine across said highway. * * * some of the lights, if not all the lights, on the police vehicle had been turned off.' Again: Durham and Davis 'parked said police vehicle at an angle on the highway * * * and at the time the police vehicle was not properly and adequately equipped with lights.' The only other allegation with reference to lights is that contained in paragraph 6 of the amended complaint, to wit, that the officers 'caused the plaintiff (Bethea) and the operator of the vehicle in which plaintiff (Bethea) was riding to get out of said car and come to the rear of the car in which they were riding, in order that the officers might examine their driver's license in front of the headlights of said police automobile.' (Our italics)

All the evidence tends to show Joyner parked the car he was driving (a 1951 Ford owned by one Simms) wholly within the east lane, parallel and close to the curbing; and that, as testified by Joyner, '(t)he headlights and taillights were burning' on the Joyner car. Bethea testified: 'Our lights were on.'

Evidence favorable to Bethea tends to show that the police car, where stopped by Durham, was 'catercornered,' that is, headed diagonally across the east lane with the front close to the curbing and the rear extending into the center lane. A witness for...