Morris v. Jenrette Transport Co.

• Citation: 235 N.C. 568,70 S.E.2d 845
• Decision Date: 21 May 1952
• Docket Number: No. 451,451
• Court: United States State Supreme Court of North Carolina
• Parties: MORRIS, v. JENRETTE TRANSPORT CO.

Page 845

70 S.E.2d 845

235 N.C. 568

MORRIS, v. JENRETTE TRANSPORT CO.

No. 451

Supreme Court of North Carolina.

May 21, 1952

Thos. W. Ruffin, Raleigh, for plaintiff appellant.

Clem. B. Holding, Raleigh, for defendant appellee.

WINBORNE, Justice.

When the evidence offered by plaintiff, as shown in the record on this appeal, is taken in the light most favorable to him, is there sufficient evidence to take the case to the jury? The trial court ruled in the negative, and we approve.

In order to establish actionable negligence plaintiff must show (1) that there has been a failure to exercise proper care in the performance of some legal duty which defendant owed to plaintiff, under the circumstances in which they were placed; and (2) that such negligent breach of duty was the proximate cause of the injury--a cause that produced the result in continuous sequence, and without which it would not have occurred, one from which any man of ordinary prudence could have foreseen that such result was probable under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84, and numerous other cases.

Tested by this rule, it may be fairly doubted that there is shown any evidence of actionable negligence on the part of defendant in the present action. The uncontradicted statement of defendant's driver, offered in evidence by plaintiff through his witness, the deputy sheriff, refutes the theory of 'a parking' of defendant's tractor-trailer at the place of the collision in question, within the meaning of the statute, G.S. § 20-161(a), as amended by Chap. 1165 of 1951 Session Laws of North Carolina. The statute declares that 'No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any 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'.

And the terms 'park' or 'leave standing' as used in this statute have been interpreted by this Court as meaning 'something more than a mere temporary or momentary stop on the road for a necessary purpose.' 42 C.J. 613; 60 C.J.S., Motor Vehicles, § 10; Stallings v. Transport Co., 210 N.C. 201, 185 S.E. 643; Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Leary v. Bus Corp., 220 N.C. 745, 18 S.E.2d 426; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Morgan v. Coach Co., 225 N.C. 668, 36 S.E.2d 263.

In Peoples v. Fulk, supra, [220 N.C. 635, 18 S.E.2d 149] in opinion by Barnhill, J., it is said: 'Starting and stopping are as much an essential part of travel on a motor vehicle as is 'motion'. Stopping for different causes, and according to the exigencies of the occasion, is a natural part of the 'travel'. The right to stop when the occasion demands is incident to the right to travel'--citing cases.

Hence, plaintiff's car having approached before the driver of the defendant's tractor-trailer had time, after it stopped, to get out of the cab, the tractor-trailer was not parked or left standing upon the paved portion of the highway in violation of the above-quoted provision of G.S. § 20-161(a).

True, there is a proviso to G.S. § 20-161(a) which reads: 'That in the event that a truck, trailer or semi-trailer be disabled upon the highway that the driver of such vehicle shall display, not less than two hundred feet in the front and rear of such vehicle, a warnig signal * * * after sundown red flares or lanterns. * * *' But this statute contemplates that the driver shall have a reasonable time within which to perform this duty of displaying warning signals. The law will not hold him to be negligent in failing to do that which he has not had time to do. Hence, we hold that, in the light of the uncontradicted statement of the driver of defendant's tractor-trailer, that the plaintiff's car approached before he had time to get out of the cab, so offered in evidence by plaintiff, a violation of the provisions of this proviso is not made to appear.

Now, then, is there evidence that the tractor-trailer of defendant was permitted to be on the highway without lights?

The statute, G.S. § 20-129, declares when vehicles must be equipped with lights. Subsection (a) reads: 'Every vehicle upon a highway within this state during the period from a half hour after sunset to a half hour before sunrise, and at any other time when there is not sufficient light to render clearly discernible any person on the highway at a distance of two hundred feet ahead, shall be equipped with lighted front and rear lamps as in this section respectively required for different classes of vehicles, and subject to exemption with reference to lights on parked vehicles as declared in § 20-134.'

And subsections (d) and (e) pertain to rear lamps and clearance lamps respectively.

In this connection, the deputy sheriff, in his testimony, refers to a big stop light under, and clearance lights and taillight on defendant's tractor-trailer, and stated that the driver of the tractor-trailer said that, seeing the headlights coming, 'he put his foot on the brake pedal to operate it * * that it was connected with the stop light in the back, that he started using that as a signal * * *', and 'that his clearance lights were burning when he stopped.'

On the other hand, plaintiff who, according to his own statement was completely blinded, and traveling at speed of forty two miles an hour until about 15 to 18 feet from the tractor-trailer, when he first saw it, testified that 'there were no lights on the rear of the truck,' and again, 'that there were no lights burning on the truck,--nowhere on the rear that I could see there.'

If it be conceded that this testimony of plaintiff tends to show that defendant did not have lights on the rear of the tractor-trailer, the mere statement, in connection with surrounding circumstances, clearly shows that the absence of lights was not a proximate cause of the collision. Hence there is no evidence of actionable negligence in support of the allegations of the complaint.

And it may be noted that all other testimony as to lights on the tractor-trailer was from witnesses who arrived at the scene after the collision. Their testimony that at that time there were no lights on the tractor-trailer has no probative force upon the question as to whether the rear lights of the tractor-trailer were burning at the time of the collision. See Peoples v. Fulk, supra.

But if it be conceded that defendant was negligent in some respect alleged in the complaint, it is manifest from the evidence that the speed at which plaintiff was driving his automobile was the proximate cause, or at least one of the proximate causes of his injury and damage. The case comes within and is controlled by the principles enunciated and applied in Weston v. Southern R.R., 194 N.C. 210, 139 S.E. 237; Lee v. Atlantic Coast Line R. Co., 212 N.C. 340, 193 S.E. 395; Beck v. Hooks, 218 N.C. 105, 10 S.E.2d 608; Sibbitt v. Transit Co., 220 N.C. 702, 18 S.E.2d 203; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Allen v. Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Motor Lines, 228 N.C. 132, 44 S.E.2d...