Matheny v. Central Motor Lines

• Decision Date: 07 June 1951
• Docket Number: No. 525,525
• Parties: MATHENY, v. CENTRAL MOTOR LINES, Inc., et al.
• Court: North Carolina Supreme Court

Page 361

65 S.E.2d 361

233 N.C. 673

MATHENY, v. CENTRAL MOTOR LINES, Inc., et al.

No. 525

Supreme Court of North Carolina.

June 7, 1951

Covington & Lobdell, J. Laurence Jones, and Guy T. Carswell, all of Charlotte, for plaintiff, appellant.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for defendants, appellees.

DEVIN, Justice.

The collision between plaintiff's automobile and the truck of defendant Motor Lines, Inc., driven at the time by defendant Montgomery, which forms the basis of plaintiff's action, occurred November 16, 1949, at the intersection of State Highway #27 and State Highway #151. The general direction of Highway #27 is east and west, and that of Highway #151 north and south. Both are much traveled highways with paved surface 20 feet wide, Highway #27 carrying more traffic than the other. These highways intersect at right angles in a rural area, with gasoline filling stations near each corner. At the northwest corner of the intersection is a vacant lot and immediately west of it the motor service station of Beatty Motor Company. As the driver of a motor vehicle approaches the intersection from the north going south there are highway signs requiring him to stop before entering, and as one approaches from the east along Highway #27 there is a sign 'slow.'

The collision occurred about 2:45 P.M. on a clear day. There was no obstruction to the view. Highway #27 along which the truck was moving was straight and level for some distance on each side of the intersection. The plaintiff, with his wife beside him, was driving south on Highway #151 in a Mercury automobile, and defendant Montgomery was proceeding west on Highway #27 driving defendant Motor Lines' truck with a cargo of merchandise. The truck was a tandem tractor-trailer type, 32 to 36 feet long and some 10 feet high.

The plaintiff approaching the intersection brought his automobile to a complete stop 2 or 3 feet from the edge of the paved surface of Highway #27, and so remained for an appreciable length of time. The plaintiff's witness Hipp first expressed opinion the time was as long as 30 seconds but later said he couldn't say how many seconds as the 'whole thing happened mighty fast.' Defendants' truck coming from the east was visible for a distance of 300 yards, or according to another witness 400 feet, from the intersection and was being driven at the rate of 30 miles per hour according to the testimony of plaintiff's witness who was driving a smaller truck immediately behind the defendants' truck.

The plaintiff's automobile moved from its stopped position and started across the intersection, and when its front had reached a point 2 feet from the center line of Highway #27, having traveled only 9 or 10 feet, it was struck on its left front fender by the defendants' truck. Apparently the truck driver at the moment had attempted to turn the tractor to the left so that the right front of the tractor struck the left front fender of the automobile, but the trailer to which the tractor was attached was unable to change direction so quickly and its landing gear, located about the middle of the trailer, struck the automobile on the side and knocked it off the highway and across the northwest corner of the intersection into a ditch injuring plaintiff and his wife. The tractor-trailer of the defendants, at the time of the impact, was turned slightly to the left, and then turned diagonally across the highway to the right, to the north, and after striking a gasoline tank and sign post came to rest in front of Beatty Motor Company's place, a distance of 183 feet from the point of intersection of the highways. The highway patrolman observed marks left by the wheels of the truck extending back 200 feet and showing those marks began at a point 20 feet east of the intersection and in the north lane of Highway #27. These marks were not in a straight line, but bore first to the left across the center of the highway and then to the right to where the truck had stopped. For the last 100 feet of the progress of the truck after the collision the tire marks could hardly be seen. The debris indicating the point of collision was 2 feet west and 2 feet north of center of intersection.

Both plaintiff and his wife testified they suffered concussion so severe as to produce in each retrograde amnesia, and neither had any recollection of the circumstances of the collision and was unable to testify about it. The only eyewitness offered by the plaintiff as to the facts of the collision was H. M. Hipp whose deposition taken by the defendants was offered by the plaintiff. The motion to nonsuit having been allowed at the close of plaintiff's evidence, the defendants offered no evidence.

On this occasion Hipp was driving a Ford delivery truck traveling west behind the Motor Lines truck on Highway #27. He had endeavored to pass the slower moving truck, and after they passed the crest of a slight elevation 300 yards from the intersection he pulled out to his left to pass, but seeing the intersection ahead pulled back behind the defendants' truck. At that time when the truck was 150 to 200 feet away he could see the plaintiff's automobile already stopped just north of the intersection. We quote from his testimony as follows: 'The fellow in the Mercury pulled up there and stopped. The fellow in front of me, in the Central Motor Lines truck, had slowed down and touched his brakes, because his red stop-lights blinked in my face, and at that time the Mercury pulled out directly in front of the truck. The truck swerved to the left to avoid hitting the Mercury and the point of impact was right at the center of the road. The right front of the tractor hit the left front fender of the Mercury. The trailer did not move over, as there wasn't enough distance for the trailer to follow the tractor; and all that moved out of the center of the road was the tractor, at which point he lost control of his tractor. The driver lost control of the tractor, because he hit his brakes and the trailer had started to jack-knife after the impact of the tractor on the automobile. And, so far as I could see, he had no more brakes and he proceeded to hit the gas pumps in front of Beatty Motor Company. I have an opinion satisfactory to myself as to how fast the Central Motor Lines truck was going at the time it entered the intersection. My opinion is approximately 30 miles an hour.'

Hipp also testified the front of the tractor was 35 or 40 feet away from the automobile when the automobile started from its stopped position into the intersection. On cross-examination this witness was asked how far the truck was from the intersection when he first saw the automobile stopped at the intersection, and he replied: 'He was far enough away to have sufficient time to stop if the Mercury had went ahead and pulled out at that time, but the Mercury didn't pull out then. He waited until he got up close to him.'

The plaintiff, who was 76 years of age at the time of the collision, admitted he had had cataract removed from his left eye and wore thick bi-focal lens on that side, that through the bottom part of this lens he could not see anything at a distance, and that due to cataract unremoved he could see very little out of his right eye. He said his wife wore glasses but 'She does not have as much trouble in seeing as I do. ' However, he testified he had automobile driver's license issued by the State of Virginia where he had spent the summer.

The plaintiff having offered the deposition of Hipp, could not impeach his credibility, Lynch v. Carolina Veneer Co., 169 N.C. 169, 85 S.E. 289; State v. Freeman, 213 N.C. 378, 196 S.E. 308, but would not thereby be precluded from showing other facts in some instances inconsistent with those deposed by this witness. And plaintiff's position is that the evidence as to the force of the collision and the physical facts disclosed by the testimony of the highway patrolman, taken in connection with that portion of Hipp's evidence which was most favorable to the plaintiff, were sufficient to carry the case to the jury on the issue of defendants' negligence; and that the evidence and inferences drawn therefrom relied on by defendants to show contributory negligence at most raise merely a question of fact for the jury as to the proximate cause of the injury complained of. Plaintiff contends there was evidence tending to show that defendants' driver failed materially to reduce speed in approaching and traversing an intersection of highways, G.S. § 20-141(c), and that having seen plaintiff's automobile stopped at the edge of the highway he failed to exercise due care to avoid the collision, Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462, and argues that plaintiff having entered the intersection had right of way.

Defendants, however, insist that a contrary view is compelled by the uncontradicted evidence offered by the plaintiff. They point out that the truck was proceeding at 30 miles per hour over a level concrete road, 20 feet wide, with no other traffic in view save plaintiff's automobile which had come to a complete stop; that the speed of the truck, not excessive, was not materially slackened as the driver observed that plaintiff's automobile had stopped apparently to await the passing of defendants' truck; that defendants' truck was proceeding over a dominant highway, G.S. § 20-158, whereas the highway on which plaintiff was traveling #151 was made subservient by stop signs and red lights restricting entry into the highway #27 on which defendants' truck was moving; that defendants' driver had the right to assume that plaintiff would not start into the highway without seeing that such movement could be made in safety. G.S. § 20-154; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.

Furthermore, defendants contend that contributory negligence on the part of the plaintiff was conclusively shown by the evidence, and that judgment of nonsuit was properly...