Short v. Chapman, 174

• Decision Date: 29 April 1964
• Docket Number: No. 174,174
• Citation: 136 S.E.2d 40,261 N.C. 674
• Court: North Carolina Supreme Court
• Parties: Thurman SHORT v. Joyce Iva CHAPMAN, a Minor, by her Guardian ad Litem, Velma W.Rhoney.

Page 40

136 S.E.2d 40

261 N.C. 674

Thurman SHORT v. Joyce Iva CHAPMAN, a Minor, by her Guardian ad Litem, Velma W.Rhoney.

No. 174

Supreme Court of North Carolina.

April 29, 1964

Carpenter, Webb & Golding, by John G. Golding, Charlotte, for plaintiff appellant.

Hollowell & Stott, by Grady B. Stott, and Mullen, Holland & Cooke, by Frank P. Cooke, Gastonia, for defendant appellee.

PARKER, Justice.

Both plaintiff and defendant offered evidence. Plaintiff assigns as error the denial of his motion for judgment of compulsory nonsuit of defendant's counterclaim made at the close of all the evidence. Plaintiff contends that defendant's own evidence shows as a matter of law that she was guilty of legal contributory negligence, in that she was driving an automobile with its headlights on low beam, and she failed to keep a proper lookout without regard to the sufficiency of her headlights.

Defendant's counterclaim or cross-action is substantially the allegation of a cause of action on the part of defendant against plaintiff arising out of the automobile collision that is the basis of plaintiff's action. Perkins v. Perkins, 249 N.C. 152, 105 S.E.2d 663; Strong's N.C. Index, Vol. 3, Pleadings, § 8.

In respect to defendant's counterclaim or cross-action, the plaintiff may successfully avail himself of his plea of contributory negligence of defendant by a motion for a compulsory judgment of nonsuit if, and only if, the facts necessary to show contributory negligence of defendant are established so clearly by her own evidence that no other conclusion can be reasonably drawn therefrom. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Hayes v. Western Union Telegraph Co., 211 N.C. 192, 189 S.E. 499.

Plaintiff's contention that defendant was guilty of contributory negligence as a matter of law, thereby barring any recovery by her on her counterclaim or crossaction, necessitates an appraisal of her evidence in the light most favorable to her. Beasley v. Williams, 260 N.C. 561, 133 S.E. 2d 227; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

The allegations of fact in the complaint, which are admitted to be true in the answer, show these facts: On 26 May 1960 the Gaston County Moose Lodge was situate on the south side of Wilkinson Boulevard about two miles east of the city of Gastonia. Wilkinson Boulevard is a four-lane highway, 44 feet wide with wide shoulders on each side, and runs in a general east and west direction. It is divided into four lanes for traffic--two lanes for eastern traffic and two lanes for western traffic. These lanes are divided by painted stripes on the highway. About 10 p.m. on 26 May 1960 plaintiff drove his 1960 Dodge automobile from the parking lot of Gaston County Moose Lodge across Wilkinson Boulevard and into the northernmost lane of traffic adjacent to the shoulder of the highway and proceeded to drive his automobile in a western direction toward Gastonia. The minor defendant was driving a Renault automobile in a western direction on Wilkinson Boulevard at the same time. The parties stipulated that the posted maximum speed limit on the Boulevard in the area of the collision is 55 miles an hour.

Defendant's evidence, considered in the light most favorable to her, shows these facts: She was driving the Renault automobile in the northernmost lane of Wilkinson Boulevard next to the shoulder at a speed of 45 miles an hour. She was alone in the automobile. It was drizzling rain, there was fog, and it was hard to see. The road was slick. The headlights on her automobile were burning on 'low beam' and her windshield wiper was working. Her car lights were illuminating the highway for two car lengths ahead of her. As to whether they were illuminating it further she does not know. She was meeting no approaching traffic. She was watching the road ahead of her. When she approached the area adjacent to the Gaston County Moose Lodge, an automobile without any lights shining and traveling not over ten miles an hour 'pulled out' on the Boulevard not over two car lengths, or about 25 feet ahead of her. When she first saw this automobile, it had reached the center line dividing eastbound and westbound traffic and had not straightened up in the nothernmost lane. Immediately upon seeing this automobile, she 'slammed on' her brakes and 'cut her wheel' to the left in an endeavor to get around it. Her automobile started 'to spin,' turned completely around on the road, slid about 15 or 20 feet with the rear part going in a westerly direction, and the rear end of her automobile hit the bank. All the damage to her automobile was to its rear end; there was no damage to its front. If her automobile touched the automobile in front of her, it was very light. When her automobile hit the bank, she was thrown out of it and knocked unconscious. There was nothing to obscure her vision of the parking lot of the Gaston County Moose Lodge. The area of the parking lot and of the Gaston County Moose Lodge was 'lighted some.'

Plaintiff's evidence shows these facts: When he and his wife came out of the Moose Lodge, it was drizzling rain. They went to his automobile, which was parked in the parking lot facing the highway. He turned on his lights and rolled the glass of the window down on his side; his wife rolled down the glass of the window on her side. He looked west toward Gastonia, and the road was clear. He then looked east toward Charlotte and saw an automobile 'approximately almost two blocks away' to his right that had just come over the crest of a hill and started down it. This automobile was traveling 60 miles an hour or better. He then drove almost straight into the Boulevard, proceeded to its northernmost lane of traffic, and had traveled in this lane at a speed of about 40 miles an hour about 200 yards when he heard tires squealing. His wife looked back and 'yelled.' He turned and looked back and saw a Renault automobile coming toward him in a spin sideways. He stepped on the gas, and the Renault hit the left rear end of his automobile and went straight into the bank near the highway. When his automobile was hit, it swerved to the right throwing him against his wife and then back, hitting his hip on the armrest. He stopped a short distance down the road and came back to where his automobile was struck. When he got back, defendant was lying down crying with her head in some man's lap; she was not unconscious. The taillight assembly on the model Dodge plaintiff was driving lights up real bright.

In respect to defendant's counterclaim or cross-action, considering defendant's evidence in the light most favorable to her, there is plenary evidence tending to show that plaintiff was guilty of negligence in operating his automobile, and that such negligence was a proximate cause of defendant's injuries. Plaintiff's contention that defendant's counterclaim or cross-action should be nonsuited on the ground that defendant was guilty of contributory negligence as a matter of law presupposes negligence on his part. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163.

Plaintiff makes this contention in respect to defendant's testimony that she was operating her automobile on low beam: 'The only occasion when it is permissible to dim one's lights is when one meets another vehicle on a highway. G.S. § 20-131(b). Even then it is required that the dimmed headlights render clearly discernible a person 75 feet ahead. When there is no oncoming traffic, one's headlights must render clearly discernible a person 200 feet ahead. G.S. 20-131(a). Where a person operates an automobile on the highway at night with headlights on low beam when nothing exists to require this, he is negligent as a matter of law. Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884.'

It would seem that plaintiff's reference to G.S. § 20-131(b) is erroneous, and that he means to cite G.S. § 20-131(d). G.S. § 20-131(d) reads in part: 'Whenever a motor vehicle meets another vehicle on any highway it shall be permissible to tilt the beams of the head lamps downward * * * subject to the requirement that the tilted head lamps * * * shall give sufficient illumination under normal atmospheric conditions and on a level road to render clearly discernible a person seventy-five feet ahead * * *. ' (Italics ours.) G.S. § 20-131(a) provides: 'The head lamps of motor vehicles shall be so constructed, arranged, and adjusted that, except as provided in subsection (c) of this section [a subsection in reference to a motor vehicle being operated upon a highway or portion thereof, which is sufficiently lighted to reveal a person on the highway at a distance of 200 feet ahead of the vehicle], they will at all times mentioned in § 20-129, and under normal atmospheric conditions and on a level road, produce a driving light sufficient to render clearly discernible a person two hundred feet ahead, but any person operating a motor vehicle upon the highways, when meeting another vehicle, shall so control the lights of the vehicle operated by him by shifting, depressing, deflecting, tilting or dimming the headlight beams * * *. ' (Italics ours.)

Defendant's evidence shows that it was drizzling rain and there was fog. Certainly, this was not operating a motor vehicle 'under normal atmospheric conditions.' It would seem that driving an automobile at night with its head lamps on bright might prove to be deficient in drizzling rain and fog, and that driving under such conditions with the head lamps on dim might be more effective to see ahead. However that may be--there is no evidence in the record on this point--the General Assembly in defining a motorist's duties as to the lighting equipment of his head lamps refers, in G.S. § 20-131, to visibility 'under normal atmospheric conditions.' See Cheatham v. Chabal, 301 Ky. 616, 192 S.W.2d 812, for a like construction of quite similar Kentucky statutes. Certainly, no provision of G.S. § 20-131 states that it is permissible to dim one's head lamps only when one...