Leary v. Norfolk Southern Bus Corp.
| Decision Date | 23 January 1942 |
| Docket Number | 32. |
| Parties | LEARY v. NORFOLK SOUTHERN BUS CORPORATION. McDUFFIE v. SAME. |
| Court | North Carolina Supreme Court |
Civil action instituted by N. P. McDuffie to recover damages for personal injuries resulting from an automobile collision and civil action instituted by C. H. Leary, administrator, for the wrongful death of his intestate resulting from the same accident. At the time of the trial the two actions were consolidated for trial by order of the judge.
On the night of October 14, 1938, plaintiff McDuffie and his father-in-law C. B. Cooper, plaintiff Leary's intestate left Columbia, North Carolina, to visit friends at Creswell. They left on the return trip about 10 P. M., entering the highway about 200 yards behind defendant's bus. McDuffie who was driving, followed the bus for 5 or 6 miles driving at a speed of about 40 miles per hour. Upon reaching a straight stretch of road McDuffie cut his automobile to the left for the purpose of passing the bus. He saw a car approaching from the opposite direction. Thereupon he cut his car back to the right and collided with the rear end of defendant's bus. At the time, the bus was in the act of stopping or had stopped for the purpose of permitting a passenger to alight. As a result of the collision Cooper was killed and McDuffie received certain personal injuries and his automobile was damaged.
Plaintiffs allege that the defendant was negligent in that: (1) it permitted its bus to be operated by an unskilled and incompetent driver; (2) it failed to have installed on its bus a proper rear view mirror or other like device; (3) its driver operated its bus without keeping a proper lookout or exercising due care to ascertain the proximity of automobiles approaching from the rear; (4) it failed to denote its intention to stop said bus upon said highway by giving proper hand and arm or adequate mechanical signal; and (5) it permitted its bus to be parked or left standing upon the paved or improved or main traveled portion of the highway when it was practicable to park the same off of the said portion of said highway.
When the cause came on to be tried appropriate issues were submitted to and answered by the jury in favor of the plaintiffs. From judgment thereon defendant appealed.
Fred E Martin, of Norfolk, R. Clarence Dozier, of Elizabeth City, and Ehringhaus & Ehringhaus, of Raleigh, for appellant.
McMullan & McMullan, of Elizabeth City, for appellees.
One of the primary allegations of negligence is that the defendant parked or left its bus standing upon the paved or improved or main traveled portion of the highway in violation of Sec. 123(a), Ch. 407, P.L.1937. The evidence in respect thereto tended to show that the driver of the defendant's bus was in the act of stopping or had stopped the bus on the improved or paved portion of the highway for the purpose of permitting a passenger to alight, and that the shoulder of the road was of sufficient width to permit the driver to drive off of the hard surface before stopping. The only conflict in the evidence in this particular was as to whether the bus had actually stopped, the evidence of the plaintiff tending to show that it had stopped and that it did so suddenly.
On this aspect of the case the court charged as follows: It then read to the jury Sec. 123 (a), Ch. 407, P.L.1937, which is Michie's Code of 1939, Sec. 2621 (308). It then stated plaintiff's contentions in respect thereto including the statement: . It then stated plaintiffs' contentions on this allegation and charged further:
This was followed by an instruction that "the violation of a statute designed for the safety of people (other than the section related to speed) using roads and highways of this State, the violation of such statute is negligence per se."
It clearly appears from the evidence offered and the quoted portion of the charge that the court below conceived it to be a violation of Sec. 123(a) of the 1937 Act if the defendant stopped its bus on the paved portion of the highway, under the circumstances outlined, for the purpose of permitting a passenger to alight. That is, the court held, in effect, that "park" and "leave standing" are synonymous with "stop".
The defendant's exceptive assignments of error challenging the correctness of the quoted excerpts from the charge present this question: is the stopping of a motor vehicle upon the paved or improved or main traveled portion of a highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway, when such stopping is for the purpose of permitting a passenger to alight, a violation of section 123, Ch. 407, P.L. 1937, constituting negligence per se? The answer is no.
This question was discussed and decided in Peoples v. Fulk, N.C., 18 S.E.2d 147. Supplementing what was there said we may add that the temporary stopping of an automobile on the proper side of the highway for a necessary purpose is not unlawful. State v. Carter, 205 N.C. 761, 172 S.E. 415; Stallings v. Buchan Transport Co., 210 N.C. 201, 185 S.E. 643; 42 C.J., 614; 2 Blashfield Cyc. Automobile Law & Prac. § 1197, p. 332 and cases cited; Billingsley v. McCormick Transfer Co., 58 N.D. 913, 228 N.W. 424; Axelson v. Jardine, 57 N.D. 524, 223 N.W. 32; Dare v. Boss, 111 Or. 190, 224 P. 646; Accordingly, it has been held that the stopping of a service truck on the highway to hitch onto a wrecked car, Kastler v. Tures, 191 Wis. 120, 210 N.W. 415, or to detach a tow chain, Henry v. S. Liebovitz & Sons, 312 Pa. 397, 167 A. 304, reasonable backward or forward movement of a vehicle engaged in ordinary use of the highway, with allowance of time required in changing direction, Henry v. S. Liebovitz & Sons, supra, stopping momentarily to permit a person to board the vehicle, Peoples v. Fulk, supra; American Co. of Arkansas v. Baker, 187 Ark. 492, 60 S. W.2d 572, or stopping to make a delivery, where there is ample room to pass, Delfosse v. New Franken Oil Co., 201 Wis. 401, 230 N.W. 31, does not constitute a violation of statutes such as the one under consideration. See, also, 2 Blashfield, Cyc. of Auto. Law and Prac. § 1197, pp. 332, 333.
In many instances such temporary stops are required by statute, Ch. 407, P.L. 1937, sections 105, 117, 119, 120, 128 and 134, Code 1939, §§ 2621(290), 2621(302), 2621 (304), 2621(305), 2621(313), 2621(319), and to hold otherwise would mean that a motorist who stops at a through street or to permit a pedestrian to pass in safety or for traffic to clear before making a left-hand turn or to yield the right of way to a train at a railroad crossing or to permit a passenger to get on or to alight from the vehicle must first drive off of the hard surface onto the shoulder of the road. The language used in the statute is not such as to justify this conclusion.
The charge of the court on this aspect of the case dealt with one of the plaintiffs' primary allegations of negligence. Defendant admitted its bus was stopped with all four wheels on the pavement to permit a passenger to alight. The court instructed the jury that this was an act of negligence per se. Such charge was erroneous and prejudicial.
On the question of contributory negligence of plaintiff McDuffie, see McNair v. Dr. Kilmer & Co., 210 N.C. 65, 185 S.E. 481; Hughes v. Luther, 189 N.C. 841, 128 S.E. 145.
As the questions presented by the other exceptive assignments of error may not again arise we refrain from discussion thereof.
New trial.
From the main opinion I dissent. I give the facts and the law in the case fully.
These are two actions brought by plaintiffs against defendant for actionable negligence, alleging damage. They were consolidated for trial without objection.
In the McDuffie case the issues and answers thereto were as follows:
In the Leary case the issues and answers thereto were:
To continue reading
Request your trial