Sharpe v. Hanline, 296

• Decision Date: 03 November 1965
• Docket Number: No. 296,296
• Citation: Sharpe v. Hanline, 144 S.E.2d 574, 265 N.C. 502 (N.C. 1965)
• Court: North Carolina Supreme Court
• Parties: Elizabeth L. SHARPE, Executrix of the Estate of Winford L. Sharpe, deceased v. W. E. HANLINE and/or Hanline Poultry Company, and Harry Lee Grier.

Page 574

144 S.E.2d 574

265 N.C. 502

Elizabeth L. SHARPE, Executrix of the Estate of Winford L Sharpe, deceased v. W. E. HANLINE and/or Hanline Poultry Company, and Harry Lee Grier.

No. 296.

Supreme Court of North Carolina.

Nov. 3, 1965.

Hedrick, McKnight & Parham, Charlotte, for plaintiff appellant.

Wardlow, Knox, Caudle & Wade, Charlotte, for defendant appellees.

DENNY, Chief Justice.

The sole assignment of error is based upon the exception to the ruling of the court below in granting defendants' motion for judgment as of nonsuit at the close of plaintiff's evidence.

It is provided in G.S. § 20-161 as follows: '(a) 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: * * *.'

The evidence adduced in the trial below is to the effect that defendant Grier parked the flat-bed pickup truck of Hanline on the shoulder of I-85 at an angle, with the rear left corner of the flat-bed truck protruding eight or ten inches into the traveled portion of the northern or outside lane of said highway. The uncontradicted evidence is to the effect that the shoulder of the road where the Hanline truck was parked was fifteen to eighteen feet wide. The evidence further tends to show that the parked vehicle had no lights or reflectors on it that could be observed by a motorist approaching the truck from its rear.

In our opinion, the provisions of G.S. § 20-161 require that no part of a parked vehicle be left protruding into the traveled portion of the highway when there is ample room and it is practicable to park the netire vehicle off the traveled portion of the highway.

Ordinarily, when it affirmatively appears from the plaintiff's evidence that at the time of the accident the plaintiff was violating a safety statute or was guilty of conduct which was the proximate cause or one of the proximate causes of the accident he will be held guilty of contributory negligence as a matter of law. Weston v. R.R., 194 N.C. 210, 139 S.E. 237; Lee v. Atlantic Coast Line R. Co. R.R., 212 N.C. 340, 193 S.E. 395; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254.

In the instant case, there is no evidence that plaintiff's testate was violating any safety statute at the time of the accident. There is evidence, however, to the effect that at the time of the collision another vehicle was passing the Burlington Industries truck on its left.

In Lambert v. Caronna, 206 N.C. 616, 175 S.E. 303, it is said: "Evidence tending to show that the plaintiff's automobile collided with defendant's truck parked partly across the highway on a dark night without a tail light in violation of statute, causing personal injury to the plaintiff and damage to his car, is sufficient to sustain an affirmative answer upon the issue of defendant's actionable negligence.

'Contributory negligence of the plaintiff will not be held to bar recovery as a matter of law when an inference in his favor is permissible from the evidence, and in this case where the defendant had parked its car on a dark night upon the side of the highway without a tail light, and there is a reasonable inference that under the existing conditions the plaintiff could not have seen the truck in time to have avoided the injury, in the exercise of ordinary care, the question of contributory negligence upon the issue is for the determination of the jury."

In the case of Cole v. Koonce, 214 N.C. 188, 198 S.E. 637, defendants' truck was parked on the side of the highway with the left rear of the truck protruding twenty-eight inches on the concrete. Plaintiff was nonsuited below. Upon appeal, this Court reversed and, among other things, said: 'It is a familiar rule that a judgment of involuntary nonsuit on the ground of contributory negligence of the plaintiff cannot be rendered unless the evidence is so clear on that issue that reasonable minds could draw no...