Moss v. Tate, 273

• Decision Date: 02 June 1965
• Docket Number: No. 273,273
• Citation: 142 S.E.2d 161,264 N.C. 544
• Parties: Glemon Ray MOSS v. C. G. TATE, trading as C. G. Tate Construction Company.
• Court: North Carolina Supreme Court

Page 161

142 S.E.2d 161

264 N.C. 544

Glemon Ray MOSS v. C. G. TATE, trading as C. G. Tate Construction Company.

No. 273.

Supreme Court of North Carolina.

June 2, 1965.

Valentine & Valentine, Nashville, for plaintiff appellant.

Battle, Winslow, Merrell, Scott & Wiley, Rocky Mount, for defendant appellee.

BOBBITT, Justice.

Only one question is presented: Was the evidence, when considered in the light most favorable to plaintiff, sufficient to require submission to the jury?

Under its contract of September 1961 with the State Highway Commission, defendant had been engaged 'for many months' in the construction of the Nashville bypass, referred to hereafter as the bypass of 'new 64.' On December 25, 1962, the bypass west of Nashville had been paved but was not open to traffic.

The bypass and U. S. Highway No. 64, referred to hereafter as #64 or 'old 64,' converged approximately 1.34 miles west of Nashville. At said of convergence, going east, #64 continued straight and the bypass diverged to the (left) north. The 'V' or 'fork' between said roads near said point of convergence was to the right (north) of approaching westbound motorists.

Plaintiff testified the barricade was located 'about 20 or 25 feet from the peak of the corner made by old 64 coming together with the new 64,' the south end being 'within 10 or 12 inches of the hard surface' of 'old 64.' Edwards, plaintiff's witness, testified the barricade was 'close to the intersection of those who roads.'

All the evidence tends to show the barricade extended partway across 'new 64'; that its sole purpose was to warn eastbound motorists that 'new 64' was not open to traffic; and that there were no lights, reflectors or warnings of any kind 'on the back side of that barricade.'

According to Fleming, defendant's witness, who was the State Highway Commission's Resident Engineer, this was 'a standard barricade erected at the beginning-end of the project, which was the West end of the bypass.' He described it as follows: 'The barricade consisted of three reflectorized boards attached to an upright frame with a 'Road Closed' sign bolted to the middle board. These boards are approximately 8 feet long with black and yellow cross-hatchings across the boards with beaded points applied to them to reflect lights. When an automobile's headlights strike these boards at night, it lights like a Christmas tree. In the middle of this thing, bolted to the center board, we had a 'Road Closed' sign. The whole unit stands approximately 5 feet high.' Suffice to say, there is no evidence or contention that the barricade failed to give adequate warning to east-bound motorists of its presence and purpose.

Plaintiff knew 'the area' was under construction, that 'the shoulders had just been built,' and that the shoulders 'were soft with right much rain.' Each day, during the three weeks preceding December 25, 1962, plaintiff had made a round trip between his home in Spring Hope and Langley's Superette. Approximately ninety per cent of these trips were made on #64. He had noticed the barricade each time he passed. The last time he passed was about 2:00 p. m. on December 25, 1962. Previously, while traveling west on #64, he had noticed eight or ten 'Soft Shoulders' signs during the last quarter of a mile before reaching the convergence of #64 and the western terminus of the bypass.

There was no center line on #64 at the time of plaintiff's mishap. There had been 'a center line along there before the recent application of tar and asphalt.' The 'blacktop' on this part of the highway 'had been newly sprayed not too many days before and * * * was real black.'

Plaintiff guessed the width of #64 was 'about 20 feet.' Wheeler, defendant's witness who was the investigating State Highway Patrolman, testified: 'The width of the paved surface that night of the old U. S. Highway 64 was 24 feet.'

As to what occurred at the time of his mishap, plaintiff testified: 'I could see them (the approaching trailer-truck and car) 400 or 500 yards. I could see the lights. * * * Those lights were very bright. I did not continue to drive along at 35 miles per hour, but slowed down when I met the truck. I imagine I slipped off during the time before I got past the truck. It was a long truck. I didn't just slam on brakes all at once. I was going to follow it on out because I knowed the shoulders was soft and I knew when I slipped off, and I knowed if I pulled back on probably what would happen, but there was that barricade sitting right in front of me when I got past the truck.' Again: 'When I went off the road the first time, I went off on my right side. When I pulled back * * * when I cut to my left on the blacktop, my truck went in a spin and threw me out and the truck turned over and was headed right back up facing the highway just like it was coming in off a side road. After the truck came of a stop, it was on the south side of the highway.'

According to Edwards, plaintiff's truck, when it came to rest on the south shoulder, was 'almost opposite the barricade.'

Plaintiff testified: 'So far as I know, the truck never got on my side of the road. Insofar as I know, the car never got on my side of the road.'

There is no evidence or contention that plaintiff's truck struck any part of the barricade. All the evidence tends to show it did not do so.

The evidence is silent (1) as to the width of the north shoulder of #64, (2) as to how much of plaintiff's truck actually got on the north shoulder...