Morgan v. Cook

• Decision Date: 19 November 1952
• Docket Number: No. 383,383
• Citation: 236 N.C. 477,73 S.E.2d 296
• Parties: MORGAN, v. COOK et al.
• Court: North Carolina Supreme Court

Page 296

73 S.E.2d 296

236 N.C. 477

MORGAN, v. COOK et al.

No. 383

Supreme Court of North Carolina.

Nov. 19, 1952

Ottway Burton, Asheboro, for plaintiff-appellant.

Smith & Walker, Asheboro, for defendants-appellees.

DENNY, Justice.

The plaintiff drove his automobile more than 1,300 feet while he was blinded by the lights of the defendants' oil truck. According to his evidence, while he was traveling this distance he was so 'blinded' he could see nothing in his lane of traffic. Yet he proceeded until he got even with the truck, 'tapped the gas to go on through,' and was within 12 or 15 feet of the tractor-trailer which was across his lane of traffic, before he 'was first able to see it.' He says he was going about 35 miles an hour when the collision occurred.

Conceding the negligence of the defendants in the respects alleged, nevertheless the contributory negligence of the plaintiff is manifest from his own testimony. Morris v. Jenrette Transport Co., 235 N.C. 568, 70 S.E.2d 845; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Pike v. Seynour, 222 N.C. 42, 21 S.E.2d 884; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Sibbitt v. R. & W. Transit Co., 220 N.C. 702, 18 S.E.2d 203; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Lee v. Atlantic Coast Line R. R. Co., 212 N.C. 340, 193 S.E. 395; Weston v. Southern R. R. Co., 194 N.C. 210, 139 S.E. 237.

In McKinnon v. Howard Motor Lines, supra, Robert H. McKinnon testified that he ran in a 'blinded area' for two or three seconds, at a speed of 35 miles an hour and for a distance of 100 feet--other witnesses put it at 100 yards or 400 feet--when he was completely blinded and could see nothing in front of him except the right-hand edge of the road. While he was so blinded he ran into the rear of a slowly moving or stalled truck which was being operated without rear lamps as required by G.S. § 20-129. On this evidence, Stacy, C. J., speaking for the Court, said: 'Both his vision and his pre-vision seem to have failed him at one and the same time. Such is the stuff of which wrecks are made. The conclusion seems inescapable that the driver of the McKinnon car omitted to exercise reasonable care for his own and his companion's safety, which perforce contributed to the catastrophe. This defeats recovery * * *.' [228 N.C. 132, 44 S.E.2d 737.] It is clear that he plaintiff in this action failed to exercise reasonable care for his own and his brother-in-law's safety under the existing circumstances, and that such failure contributed to their personal injuries and the damage to plaintiff's automobile. This defeats the plaintiff's right to recover.

The ruling below in sustaining defendants' motion for judgment as of nonsuit will be upheld.

Affirmed.

ERVIN and JOHNSON, JJ., dissent.

VALENTINE, Justice (dissenting).

I feel compelled to register my vote against the conclusion reached in the majority opinion. In my judgment, the plaintiff has made out a case which entitles him to have a jury pass upon the issues of negligence, contributory negligence and damages, and my vote is to reverse the judgment of nonsuit and allow the jury to pass upon the issues of fact.

In addition to the evidence of the plaintiff quoted in the majority opinion, I find that in speaking of the tractor, tank-trailer and its environs at the time and immediately before the wreck, the plaintiff also said: 'There were no flares or lights stationed anywhere along here to indicate that this tank was across the road. Not anything at all. There was no person there with any flashlights to indicate that; there wasn't anything; those two bright headlights in the middle lane.' And again, 'No, sir. I didn't see a flashlight. There wasn't any light there of any kind. If there had been a light I could have seen it. It there had been any lights on the truck I could have seen these lights. * * * There were no flares or anything else to warn me that the truck was parked. * * * I called on him (the truck driver) three or four times with the dimmers trying to make him lower his lights. * * * The truck was a grayish color. It was a little dirty, nearly the color of the highway.'

From the testimony of a passenger in plaintiff's car, this appears: 'The trailer was high enough Morgan's light was shining under it. * * * Mr. Morgan was gradually slowing down all the time. * * The tractor part of the truck trailer was parked straight up in the middle lane, facing this way. It was a five wheel proposition, three axle proposition. I did not see any clearance lights or red lights at all on the tanker and none were burning on the tanker whatsoever. All I could see was two glaring headlights on the truck. * * * There wasn't any light at all on the tanker to warn me that this tanker was in the way.'

Thus, from the plaintiff's evidence, viewed in the light most favorable to him as we are required to do upon a motion for judgment as of nonsuit, Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664, these logical inferences may be drawn: The plaintiff and his brother-in-law were en route on highway 220 to the place of their employment at about 10 or 10:30 o'clock at night. Highway 220 is a three-lane highway paved to a width of 35 feet. As the plaintiff approached the point of collision, he encountered bright lights, resembling those of a locomotive, in the center lane. It developed that these bright lights were on the tractor part of the tractor-trailer combination belonging to the defendant, Southern Oil Transportation Company, and operated by its agent, Ernest Eli Cook. Plaintiff dimmed his lights several times in an effort to obtain the same courtesy from the driver of the other vehicle. The location was within a 35 mile zone and at no time did the plaintiff exceed 35 miles per hour. When his vision was interfered with by the tractor lights, he slackened his speed to from 25 to 30 miles per hour. He had...