Sibbitt v. R. & W. Transit Co.
| Decision Date | 07 January 1942 |
| Docket Number | 683. |
| Citation | 18 S.E.2d 203,220 N.C. 702 |
| Parties | SIBBITT v. R. & W. TRANSIT CO. |
| Court | North Carolina Supreme Court |
This was an action by the plaintiff to recover damages for personal injury alleged to have been proximately caused by the negligence of the defendant. The defendant denied that it was negligent, and also entered the alternative plea of contributory negligence in bar of recovery. At the close of all the evidence the Court sustained the motion of the defendant for a judgment as in case of nonsuit, C.S. § 567 and from judgment accordant with such ruling the plaintiff appealed, assigning error.
John S. Butler, of St. Pauls, and McLean & Stacy, of Lumberton, for appellant.
Oates Quillin & MacRae, of Fayetteville, for appellee.
Viewing the evidence in the light most favorable to the plaintiff, it tends to show that on the night of February 23 1941, about 7:45 o'clock, the plaintiff was driving an automobile on State Highway No. 74, from Wilmington to Whiteville, and that at the same time the defendant's oil truck was being driven in the same direction on the same highway; that as the plaintiff was proceeding on his journey, about half way between Wannanish and Lake Waccamaw, and driving about 50 or 55 miles per hour, he saw some smoke, blankets of smoke across the highway coming from fires on the side thereof, and put on his brakes and came to a speed of approximately 30 or 40 miles per hour, then proceeded about 50 or 60 yards in the smoke, when he saw a light flare on his left side of the highway and realized that the "smoke was a solid wall," and at the same time he saw the light he likewise saw the "rear of an oil tanker," and he immediately applied his brakes, but his automobile collided with the rear of the tanker causing serious personal injury to him; that the oil tanker was stopped on the highway and there were no lights burning on the rear thereof at the time of the collision; that when the plaintiff saw the light flare on his left side of the highway he got the impression that it was a light from another car approaching from the opposite direction, but he afterwards learned that the light he saw flare was a spot light on the oil tanker.
We are of the opinion, and so hold, that the judgment as in case of nonsuit was properly entered.
Conceding that the defendant was negligent in stopping its oil tanker on the highway with no rear lights, Code 1939, § 2621 (278) (d), still we think the evidence discloses contributory negligence on the part of the plaintiff which bars recovery.
In its last analysis this case poses the question of the duty of an automobile driver, operating his automobile in the nighttime with his vision obscured by smoke in the highway from fires on the side thereof. If this smoke rendered it impossible for the plaintiff to see the defendant's oil tanker in time to stop his automobile at the rate of speed at which he was operating it soon enough to avoid the collision, there was a failure to exercise due care on the part of the plaintiff in operating his automobile at such a rate of speed. If the plaintiff saw, or by the exercise of due care could have seen, the oil tanker in time to stop his automobile soon enough to avoid the collision and failed to do so, there was likewise a failure to exercise due care on his part. The plaintiff,...
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