Meadows v. Cigar Supply Co., Inc., No. 8811SC260

• Docket Nº: No. 8811SC260
• Citation: 371 S.E.2d 765, 91 N.C.App. 404
• Case Date: September 20, 1988
• Court: Court of Appeal of North Carolina (US)

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371 S.E.2d 765 91 N.C.App. 404 Otto C. MEADOWS and wife, Eva N. Meadows
v.
CIGAR SUPPLY COMPANY, INC. and Cargocare Transportation Company, Inc. No. 8811SC260. Court of Appeals of North Carolina. Sept. 20, 1988.

Armstrong & Armstrong, P.A. by L. Lamar Armstrong, Jr., Smithfield, for plaintiffs-appellants.

Donald J. McFadyen, Fayetteville, for defendant-appellee.

[91 N.C.App. 405] SMITH, Judge.

Plaintiffs' sole assignment of error is directed at the trial court's granting of defendant's motion for summary judgment. Plaintiffs contend the trial court erred in granting defendant's motion in that the issues of whether defendant breached a duty owed to Mr. Meadows and whether Mr. Meadows was contributorily negligent should be determined by a jury. We agree.

The affidavits and depositions disclose that on 6 January 1986, between 7:00 and 8:00 a.m., a Cargocare truck was backed into a loading bay area of a warehouse with the truck cab protruding into the outside eastbound travel lane of Third Street in Sanford, North Carolina. A Cigar Supply flatbed truck was also parked adjacent to the curb in the outside eastbound lane north of the Cargocare cab. Cigar Supply's employee activated four-way flashers on its truck to warn approaching motorists of the Cargocare truck.

Just before 8:00 a.m., Officer Billy Norris of the Sanford Police Department was driving east in the inside lane on Third Street near the Cigar Supply warehouse. Although he was wearing sunglasses, using

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his car's sun visor, and looking through the tinted glass of his patrol car, it was extremely difficult for him to see because of the rising sun's glare. Norris did not see the Cigar Supply truck parked in the outside lane until he was directly beside it and would have struck it had he been in the outside lane. He immediately drove around the block to return to the warehouse and have the truck moved or have other measures taken to warn approaching traffic.

Mr. Meadows testified in his deposition that while Officer Norris was circling the block, Mr. Meadows was driving his van east in the outside lane of Third Street. The sun's glare impaired his vision, so he took his foot off the accelerator but continued to drive ahead. He did not apply his brakes or stop his vehicle. Mr. Meadows did not see the Cigar Supply truck before he hit the back of it.

By deposition, Cigar Supply's manager on duty on 6 January 1980 testified that on numerous occasions before the accident he had ordered employees to park a truck on the street with its flashers on to warn motorists of trucks protruding from the [91 N.C.App. 406] loading dock into the outside lane of Third Street. However, other Cigar Supply employees testified that 6 January 1980 was the first time they remembered a truck being parked on the street to warn approaching motorists. Defendant also submitted the affidavit of Robert J. Bracken, a licensed surveyor and registered engineer, to the effect that a driver travelling the same path as Mr. Meadows would have had an unobstructed view of the parked truck at least 520 feet from the location of the accident.

The trial court's judgment is correct "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits ... show that there is no genuine issue as to any material fact and that [defendant] is entitled to a judgment as a matter of law." G.S. 1A-1, Rule 56(c); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). "Summary judgment may not be granted if there is any genuine issue as to any material fact." Gray v. American Express Co., 34 N.C.App. 714, 715, 239 S.E.2d 621, 623 (1977). In ruling on defendant's motion for summary judgment, the court must consider any evidence in the light most favorable to plaintiffs, Walker v. Westinghouse Electric Corp., 77 N.C.App. 253, 335 S.E.2d 79 (1985), disc. rev. denied, 315 N.C. 597, 341 S.E.2d 39 (1986), and give to plaintiffs all favorable...