McCullough v. Amoco Oil Co.
| Decision Date | 04 October 1983 |
| Docket Number | No. 8218SC953,8218SC953 |
| Citation | 64 N.C.App. 312,307 S.E.2d 208 |
| Parties | Marion Douglas McCULLOUGH, Jr. v. AMOCO OIL COMPANY. |
| Court | North Carolina Court of Appeals |
Forman, Fish & Hall, P.A. by Paul E. Marth, Greensboro, for plaintiff-appellant.
Petree, Stockton, Robinson, Vaughn, Glaze & Maready by Norwood Robinson, Daniel R. Taylor, Jr., and Leon E. Porter, Jr., Winston-Salem, for defendant-appellee.
Plaintiff, Marion Douglas McCullough, Jr., instituted this action on 27 March 1981 seeking damages for personal injuries sustained when he was struck by an oil tanker driven by defendant's agent, Noel G. Mathlery, in Kernersville, North Carolina. After filing its Answer denying negligence and alleging contributory negligence, and after discovery was initiated, defendant filed a motion for summary judgment. After considering (a) the pleadings, (b) the affidavits of Mathlery and two disinterested witnesses that the plaintiff ran in front of the truck, and (c) the plaintiff's statement in his deposition that the last thing he remembers was being on the shoulder of the road before being struck by the truck, the trial court entered an order, dated 8 July 1982, granting summary judgment to the defendant and dismissing plaintiff's suit. From that order, plaintiff appeals.
On 7 March 1979 plaintiff McCullough was a senior at Kernersville Wesleyan Academy in Kernersville, North Carolina. Following a 10:00 a.m. class, McCullough went to his car, parked in a lot on the north side of U.S. Highway 421 directly across from his school, to pick up a book required for his 11:00 a.m. class. McCullough was wearing a yellow shirt and white pants at the time.
Directly in front of Kernersville Wesleyan Academy, Highway 421 divides into two branches or forks heading west. The northern branch leads into downtown Kernersville; the southern branch later merges into Interstate 40. A triangular grass median separates the two branches of the highway.
After McCullough got his book from his car, he jogged to the northern branch of the road leading into Kernersville where he stopped and allowed two cars to pass by. McCullough then proceeded across the northern branch and entered the grassy median between the branches. Evidence as to what transpired thereafter is conflicting. McCullough testified in his deposition as follows:
When I reached my car I got my business math book, which was on the passenger side in the front seat. On my way back to the school, I am not really sure, but I think I jogged back to the right branch [northern branch] of the road.
I usually do not stop at that point, but I had to because two cars were coming. After both cars went by, I walked across into the median between the forks. I stopped two feet from the northern edge of the pavement of the left branch [southern branch] at old 421 and looked in a westerly direction. There were two vehicles coming headed in a easterly direction. One was a Trans Am, which I was interested in watching, so I watched it as it travelled past me. I then saw a car go past me in the westerly direction toward Winston-Salem. That is the last thing I remember.
The defendant, on the other hand, presented affidavits from Mathlery, the driver of the oil tanker, and from two eyewitnesses that McCullough ran from the grass median directly in front of the oil tanker, never turning his head toward the tanker until it was right on top of him, and that McCullough collided with the tanker around the center of its front grille in the lane of travel. Both eyewitnesses stated that the tanker came to a very quick stop upon impact and indicated that the tanker was not travelling at an excessive speed. The truck driver stated that he did not observe McCullough crossing the right fork in the highway but, rather, saw him for the first time running toward the highway from behind a large directional sign and telephone or power pole in the median. The truck driver further indicated that he hit his brakes the moment he saw McCullough, that he did not blow his horn or change lanes prior to striking McCullough, and that the tanker never left the highway or lane of travel.
As a result of the injuries sustained, McCullough was hospitalized in excess of fifty (50) days and incurred medical expenses in excess of $40,000.00.
The sole exception and assignment of error on this appeal is that the trial court erred as a matter of law in granting the defendant's motion for summary judgment.
Because summary judgment deprives a party of an opportunity to develop its case by witnesses, summary judgment is proper only when the pleadings, discovery responses, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. N.C.Gen.Stat. § 1A-1, Rule 56 (1969). Not only is the burden on the moving party to establish the lack of triable issues of fact, but the court must also look at the record in the light most favorable to the party opposing the motion. Sharpe v. Quality Education, Inc., 59 N.C.App. 304, 307, 296 S.E.2d 661, 662 (1982). As we stated in Goode v. Tait, Inc., 36 N.C.App. 268, 269-70, 243 S.E.2d 404, 406, disc. rev. denied, 295 N.C. 465, 246 S.E.2d 215 (1978):
The rule requires that before summary judgment may be had, the materials filed must affirmatively show that not only would the moving party be entitled to judgment from the evidence contained within the materials, but they must also show that there can be no other evidence from which a jury could reach a different conclusion as to a material fact.
The stringent requirements placed on a movant are intended, because Williams v. Carolina Power & Light Co., 296 N.C. 400, 402, 250 S.E.2d 255, 257 (1979) (emphasis added).
Had McCullough stated in his deposition that after getting his math book he started back towards school and does not thereafter remember what happened, summary judgment clearly would have been appropriate since negligence is not presumed from the mere fact that an accident or injury occurred--the accident or injury alone does not raise an inference of negligence. Brewer v. Green, 254 N.C. 615, 619, 119 S.E.2d 610, 613 (1961); Grant v. Royal, 250 N.C. 366, 369, 108 S.E.2d 627, 628 (1959);...
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Carter v. Poole
...if plaintiff was contributorily negligent, defendant had the last clear chance to avoid the collision. See McCullough v. Amoco Oil Co., 64 N.C.App. 312, 307 S.E.2d 208 (1983). For the foregoing reasons, summary judgment for defendant Reversed. HEDRICK and BRASWELL, JJ., concur. ...