Pascal v. Burke Transit Co.

• Decision Date: 10 November 1948
• Docket Number: 308
• Citation: 50 S.E.2d 534,229 N.C. 435
• Parties: PASCAL v. BURKE TRANSIT CO. et al. LAMBERT v. BURKE TRANSIT CO. et al.
• Court: North Carolina Supreme Court

50 S.E.2d 534

229 N.C. 435

PASCAL v. BURKE TRANSIT CO. et al.

LAMBERT v. BURKE TRANSIT CO. et al.

No. 308

Supreme Court of North Carolina

November 10, 1948

The plaintiffs in each of these actions instituted suit alleging personal injuries and damages sustained as a result of the negligence of the defendant, Burke Transit Company, in a head-on collision between Renaldo Pascal's car and the Burke Transit Company's bus, about 10:15 p m., on February 19, 1947. It is alleged the collision occurred on Pascal's right side of Highway No. 70, about three miles east of Morganton; the car driven by Pascal was proceeding in an easterly direction and the Burke Transit Company's bus was travelling in a westerly direction. David E. Lambert was a guest in the Pascal car.

The Burke Transit Company answered in both actions, alleging that if the plaintiffs were injured by its negligence, that the Queen City Coach Company proximately concurred in and contributed to such injuries, and asked that it be made a party. The defendant Burke Transit Company set up a cross-action against the Queen City Coach Company in each case, alleging that if it was negligent, which is not admitted, it avers that any damages suffered by the respective plaintiffs, were proximately caused by the negligence of the Queen City Coach Company, in that one of the regular coaches of the Queen City Coach Company operating in the usual course of its business, was being operated without proper lights on the rear thereof, as required by law, and in that the operator or driver of the said bus stopped the said bus upon the said highway without signal, sign or warning, which because of the darkness, fog and rain and the lack of lights as aforesaid rendered said bus invisible until this defendant's bus driver was close upon it, and to avoid a rear-end collision suddenly applied the brakes of this defendant's bus causing the same to skid upon the highway owing to the wet and slippery condition thereof, and thus to skid across the center line into collision with the automobile in which the plaintiffs were at the time travelling, and this defendant alleges that the proximate cause or one of the proximate causes of the injuries complained of by the plaintiffs was due to the careless and negligent operation of the bus of the Queen City Coach Company.

It is further alleged in these cross-actions that if the defendant was guilty of any negligence proximately causing the damages suffered by the respective plaintiffs, the Queen City Coach Company joined and concurred in producing such damages, and such joint and concurrent negligence constituted the Queen City Coach Company a joint tort feasor within the meaning and purpose of G.S. s 1-240; and prayed for the right of the Burke Transit Company for contribution by the Queen City Coach Company to be determined in these actions.

The Queen City Coach Company was made a party defendant in both cases, and filed answers to the cross-actions of its codefendant, denying the allegations contained therein.

The cases were consolidated for trial by consent of all parties.

Issues were submitted to the jury in the respective cases, and answered as follows:

'1. Was the plaintiff, Renaldo Pascal, injured and his property damaged by the negligence of the defendant, Burke Transit Company, as alleged in the complaint? Answer: Yes.

'2. Was the plaintiff, Renaldo Pascal, injured and his property damaged by the negligence of the defendant, Queen City Coach Company, as alleged in the answer and cross-action of the defendant, Burke Transit Company? Answer: Yes.

'3. What amount, if any, is the plaintiff, Renaldo Pascal, entitled to recover on account of his personal injuries? Answer: $21,500.00.

'4. What amount, if any, is the plaintiff, Renaldo Pascal, entitled to recover on account of the damages to his automobile? Answer: $935.00.'

'1. Was the plaintiff, David E. Lambert, injured by the negligence of the defendant, Burke Transit Company, as alleged in the complaint? Answer: Yes.

'2. Was the plaintiff, David E. Lambert, injured by the negligence of the defendant, Queen City Coach Company, as alleged in the answer and cross-action of the defendant, Burke Transit Company? Answer: Yes.

'3. What amount, if any, is the plaintiff, David E. Lambert, entitled to recover on account of his personal injuries? Answer: $500.00.'

From the judgments entered on the verdicts, both defendants appeal and assign error.

Theodore F. Cummings, of Hickory, for plaintiffs Renaldo Pascal and David E. Lambert.

J. B. Craven, Jr. and Mull & Patton, all of Morganton, for defendant Burke Transit Company.

Williams & Williams, of Asheville, for defendant Queen City Coach Company.

Appeal of the defendant, Queen City Coach Company.

DENNY Justice.

This defendant seriously contends that its motion for judgments as of nonsuit on the cross-actions of the Burke Transit Company, for contribution under G.S. s 1-240, should have been allowed.

After the Queen City Coach Company was made a party defendant, the plaintiffs did not amend their pleadings and allege this defendant was also negligent and that such negligence concurred with the negligence of the Burke Transit Company, in causing the injuries and damages sustained by them. Therefore, the burden was upon the co-defendant, Burke Transit Company, in its cross-actions against the Queen City Coach Company, to show by the greater weight of the evidence that the Queen City Coach Company was negligent, and that such negligence concurred with its own negligence, if any, which joint and concurrent negligence was the proximate cause of the injuries and damages sustained by the plaintiffs. Consequently, we must consider the evidence on this issue in the light most favorable to the Burke Transit Company, and such company is entitled to the benefit of every reasonable inference to be drawn therefrom. Buckner v. Wheeldon, 225 N.C. 62, 33 S.E.2d 480; Lindsey v. Speight, 224 N.C. 453, 31 S.E.2d 371; Ross v. Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852; Wingler v. Miller, 223 N.C. 15, 25 S.E.2d 160.

The evidence tends to show that the plaintiff, Renaldo Pascal, was driving his car 35 or 40 miles an hour in an easterly direction on Highway No. 70, east of Morganton, about 10:15 o'clock at night, and a bus of the Queen City Coach Company, being operated in a westerly direction had stopped to discharge a passenger. The bus of the Burke Transit Company was also proceeding in a westerly direction.

The driver of the Burke Transit Company's bus testified: He was proceeding west and observed a car coming east which dimmed its lights and he also dimmed his lights. Visibility was very poor, it was 'misting rain and kind of foggy, you couldn't see very far ahead * * * and all of a sudden I saw the Queen City bus in front of me * * * I saw no lights at all on the bus. I saw the bus from the lights of my bus. The Queen City bus was standing at a dead still when I observed it. * * * I applied my brakes. My bus skidded then * * * just a short distance across the black line * * * this on-coming car was there before I had a chance to cut it back to the right and I was right at the bus just as I skidded and caught the left corner of it (the Pascal car). They were pretty bright lights on the approaching car * * * To a certain extent on a wet highway that way they * * * did interfere with my seeing. * * * By the time the accident occurred I would say I was anywhere from six to eight feet from the Queen City bus. As I was getting out of my bus, the driver pulled off the highway * * *. I would say he pulled up ahead of me 60 or 70 feet and he had about 2 feet of his bus still on the highway. * * * There was a shoulder there of 6 feet to his right. It was level. * * * The rear of the bus had * * * three or four of these small amber lights up on top. * * * I never saw those lights before the wreck happened, but after I got out of my bus and went out there those lights were burning after the wreck happened. Q. Was there a tail light burning at that time? A. No, sir. Q. Did you have any warning or notice that a bus was standing on the highway in front of you before you were in a short distance of it? A. No. * * * I was paying strict attention to the road I did not see any lights on the Queen City bus.'

Ray W. Benfield, a witness for the plaintiffs, testified: 'I was a passenger in the Burke Transit bus, seated close to the front on the driver's side; I was looking out of the front of the bus, that is the windshield, and saw the car coming away off; I did not see the Queen City bus although at the time I was looking out of the front windshield; the first I knew the Queen City bus was in front of us, was hearing the driver, Mr. Puckett, say, 'Oh Lord, there is a bus.' * * * Mr. Puckett then hit the brakes and the bus sort of skidded or slid into the on-coming car; Mr. Puckett never did turn to the left to pass the Queen City bus before the crash; I know he dimmed his lights for the on-coming car. I did not see the Queen City bus and was looking into the windshield, and it was clear; it was drizzling rain and sort of misting rain and the Queen City had only several dim lights at the top of the bus.'

A witness for the Burke Transit Company testified: 'I went to the scene of this accident on the evening of February 19 1947. I went with the Sheriff. I observed the Queen City bus when I got there. The headlights were burning, they were on. I looked to see if the tail lights were burning. The tail light was not on. There were lights on the rear of the bus. They were across the top of the bus. The lights were on the red order, but I would not say they were bright red, I would say they were close to 10 feet high.' Other evidence also tends to show that the bus...