Privette v. Lewis, 458

• Decision Date: 08 November 1961
• Docket Number: No. 458,458
• Citation: Privette v. Lewis, 122 S.E.2d 381, 255 N.C. 612 (N.C. 1961)
• Parties: Donald D. PRIVETTE v. Robert W. LEWIS.
• Court: North Carolina Supreme Court

Page 381

122 S.E.2d 381

255 N.C. 612

Donald D. PRIVETTE v.Robert W. LEWIS.

No. 458

Supreme Court of North Carolina.

Nov. 8, 1961

Teague, Johnson & Patterson, by Ronald C. Dilthey, Raleight, for plaintiff, appellee.

Fletcher, Lake & Boyce, by G. Eugene Boyce and Arendell, Albright & Green, by Ted R. Reynolds, Raleigh, for defendant, appellant.

PARKER, Justice.

Plaintiff's evidence shows the following facts:

About 11:00 p. m. o'clock on 5 February 1958he was driving his automobile around 40 to 45 miles an hour north on U. S. Highway #1 about two miles north of the city limits of Raleigh and about one mile north of the Westinghouse plant.The highway at this place is a two lane paved road.Plaintiff met several automobiles, traffic was heavy, and he had his headlights on dim.Plaintiff passed a truck, and entering a curve passed two or three automobiles, and then saw 25 or 30 feet ahead of him standing still on the highway in his lane of traffic an automobile with no rear lights burning and no glass reflector on its rear and no flares set out.The stopped automobile was a station wagon and belonged to defendant, who had driven it there and stopped it on the highway.As soon as plaintiff saw this stopped automobile he applied his brakes, but could not avoid colliding with its rear end.There at the scene defendant told plaintiff: 'Well, I just come out from Corbett's.* * * I stopped, I was confused, was supposed to go back to Raleigh and I headed north when I came out of the driveway and was waiting to find where I was, so as to go back to Raleigh.* * * We had a little party out there, and I think I had a little too much to drink.'Defendant had a strong odor of alcohol on his breath.

Defendant assigns as error the denial of his motion for judgment of nonsuit made at the close of all the evidence.In his brief he presents this one question for decision: 'Conceding the negligence of the defendant herein, does the plaintiff's own evidence show contributory negligence as a matter of law?'

A nocturnal motorist, like every other person, is charged with the duty of exercising ordinary care for his own safety.Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276, 279.It is written in the Chaffin case: 'The duty of the nocturnal motorist to exercise ordinary care for his own safety does not extend so far as to require that he must be able to bring his automobile to an immediate stop on the sudden arising of a dangerous situation which he could not reasonably have anticipated.Any such requirement would be tantamount to an adjudication that it is negligence to drive an automobile on a highway in the night-time at all.'

In Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330, 333, it is said: 'It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel; and he is held to the duty of seeing what he ought to have seen.'

Plaintiff was not required to foresee or anticipate that an automobile would be stopped on the highway ahead of him at night without lights or the warning signals of danger required by statute, but this did not relieve him of the duty of exercising reasonable care for his own safety, of keeping a proper lookout, and of proceeding as a reasonably prudent person would under the circumstances to avoid collision with the rear end of a motor vehicle stopped or standing on the road ahead.Weavil v. C. W. Myers Trading Post, 245 N.C. 106, 95 S.E.2d 533;Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d...