Parkway Bus Co. Inc v. Coble Dairy Prod.S Co. Inc

• Decision Date: 13 October 1948
• Docket Number: No. 237.,237.
• Court: North Carolina Supreme Court
• Parties: PARKWAY BUS CO., Inc. v. COBLE DAIRY PRODUCTS CO., Inc.

229 N.C. 352

49 S.E.2d 623

PARKWAY BUS CO., Inc.

v.COBLE DAIRY PRODUCTS CO., Inc.

No. 237.

Supreme Court of North Carolina.

Oct 13, 1948.

Appeal from Superior Court, Wilkes County; Dau K. Moore, Judge.

Action by Parkway Bus Company, Inc., against Coble Dairy Products Company, Inc., to recover damages for injury to plaintiff's bus. From a judgment of nonsuit, the plaintiff appeals.

Affirmed.

This was an action to recover damages for injury to plaintiff's bus caused by collision with defendant's truck parked on highway at night without lights.

Plaintiff's evidence tended to show that the Coble truck was stopped at night, January 17, 1947, on the west side of Highway No. 601, the paved surface being 18 feet wide. The stoppage was due to the breaking of one of the truck's dual wheels sometime that afternoon. There were no lights on the truck and no flares or other signals. The night was dark, rainy, and foggy. The road was straight. About 6:15 P.M. plaintiff's bus, weighing 17, 000 pounds and carrying 12 passengers, traveling south at a speed of 30 to 35 miles per hour, struck the rear of the defendant's truck slightly to the left of center, and the impact crushed the front of the bus and drove the truck some 75 feet, and down an embankment, the bus traveling 68 feet. Shortly before this collision the bus met a truck traveling in the opposite direction, lights dimmed, but that vehicle had passed before the collision occurred. The lights on the bus were burning, and the driver testified he was within 8 or 10 feet of the truck before he saw it, too close to turn or stop. According to the testimony of the highway patrolman, with ordinary automobile lights under the conditions then existing normal vision was 75 feet.

At the close of plaintiff's evidence defendant's motion for judgment of nonsuit was allowed and plaintiff appealed.

Larry S. Moore and John R. Jones, both of North Wilkesboro, for plaintiff, appellant.

J. T. Pritchett, of Lenoir, and Trivette, Holshouser & Mitchell, of No. Wilkesboro, for defendant, appellee.

DEVIN, Justice.

While there was evidence of negligence on the part of the defendant in leaving parked on the highway after dark an unlighted truck, without flares or signals, in violation of G. S. § 20-161 (Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147; Allen v. Dr. Pepper Bottling Co., 223 N.C. 118, 25 S.E.2d 388), we think the motion for judgment of nonsuit interposed at close of plaintiff's evidence, on the ground of the contributory negligence of the driver of plaintiff's bus, was properly allowed. Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887.

The correct determination of legal responsibility for injury resulting from a rear-end collision on a highway at night between an unlighted standing vehicle and one that is moving is frequently attended with difficulty. The line of distinction between those cases where a question of fact for the jury is raised, and other cases where as a matter of law on plaintiff's evidence contributory negligence is manifest, is not always easy to draw, but from an examination of the plaintiff's evidence here we are led to the conclusion that this case falls within the latter category. In the two latest cases on the subject, Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251, and R^;ggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254, on facts similar to those in evidence here, judgments of nonsuit were upheld. In the Tyson case Chief Justice Stacy cites the recent decisions of this Court on the subject, on one side or the other of the question again presented by this appeal, and we think the ruling of the court below in this case is supported by the cases referred to. Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Powers v. S. Sternberg & Co., 213 N.C. 41, ...