Tarrant v. Pepsi Cola Bottling Co.
| Decision Date | 05 June 1942 |
| Docket Number | 746. |
| Citation | 20 S.E.2d 565,221 N.C. 390 |
| Parties | TARRANT v. PEPSI COLA BOTTLING CO. et al. |
| Court | North Carolina Supreme Court |
Civil action to recover for personal injury allegedly sustained as result of joint and concurrent actionable negligence of defendants.
In the trial court these facts appeared:
On morning of May 8, 1939, about 8:30 o'clock, plaintiff who was then 18 years of age, was injured when the bicycle which he was riding on trip to deliver a small package for King's Drug Store, by whom he was employed, came into collision with a truck of defendant, Christian-Harward Furniture Company, trading as Rogers Furniture Company driven by its employee, George E. Parrish, in the course of his employment, as both were traveling west on Chapel Hill Street at a point east of the intersection of said street and Morris Street at, and east of Five Points and in the block between Morris Street and Roney Street in the city of Durham North Carolina.
Chapel Hill Street runs in general direction of east and west, is hardsurfaced and is forty feet wide. Morris Street runs in general north and south course. At the intersection of these streets traffic is controlled by stop lights located in center of Five Points.
At the time of said collision motor vehicles were parked on both north and south sides of Chapel Hill Street in said block. Among those parked on the north side, and headed west, was a truck of defendant, Pepsi Cola Bottling Company, in charge of its employee, R. A. George, in the course of his employment. This truck, according to various estimates, was from ten to seventeen feet long and from five feet to eighty inches wide. Its cab was about two feet narrower than the main body. Its location was parallel with, and about three or four inches from the curbing at a point variously estimated to be fifty to eighty feet from Morris Street.
Plaintiff as a witness, testified, briefly stated, as follows: That when on this morning he entered Chapel Hill Street from an alley he did not see any cars--though there was "some one down the street west", and "some activity" to his right, and east, down toward the Post Office; that he crossed over to the north side of the street and went down on his right side; that he had both hands on the handlebars and both feet on the pedals; that the handlebars of his bicycle were about twelve inches wide and v-shaped; that after he passed the entrance to Roney Street, and had "got middleways of the block", he saw the Pepsi Cola truck and another car parked on the right, or north side of the street; that the door of the truck was closed, and he did not see anybody in the cab, but that as he was passing two or three feet from, and to the left side of this truck, at a speed of 8 to 10 miles per hour, the driver of the truck suddenly opened the left door of the cab seven or eight feet in front of plaintiff; that in his estimate "there were 2 1/2 feet of it jutting out from the body of the truck"; that in order to avoid running into the opened door, plaintiff cut his bicycle "suddenly" though not "directly" to his left, toward the center of the street; that he did not collide with the opened door but just as soon as he started to turn there, the front, the right front fender, of the Furniture Company's truck, also traveling west along Chapel Hill Street, hit the rear end of his bicycle and threw him to the ground under the bicycle, smashing it and injuring his leg; that he, plaintiff, did not see the Furniture Company's truck, before it hit him; that he does not know how much space there was between the Pepsi Cola truck and the Furniture Company's truck; that the Pepsi Cola truck, the space between it and his bicycle and the width of his bicycle would not occupy more than ten feet of the space of the street on the north side; that while as he came down the street he had seen two or three cars some distance ahead, traveling west and facing the stop light, there was no motor vehicle to his left at the time he turned to avoid running into the door of the Pepsi Cola truck; that while as to those cars he could not tell whether they were moving or standing still, there were none parked there waiting for stop light; that he had passed no vehicle except the Pepsi Cola truck and was not at time of passing it zigzagging his bicycle down a narrow lane formed by a line of automobiles; that he did not run into the side of the Furniture Company's truck; but, that if the door of the Pepsi Cola truck had not been thrown open in his face, he would have kept a straight course, and "would never have been hit".
Defendants, each reserving exception to denial of their respective motions for judgment as in case of nonsuit, offered evidence.
R. A. George, as witness for Pepsi Cola Bottling Company, testified in substance: That the collision between the bicycle of plaintiff and the Furniture Company's truck occurred not over three or four seconds after he had stopped the Pepsi Cola truck and parked 75 to 80 feet from intersection of Chapel Hill and Morris Streets, and cut off his motor; that it occurred while he was still in the seat, looking ahead through the windshield, and before the door was opened; that it occurred about eight or ten feet in front of him when the Furniture Company truck overtook plaintiff and had passed him about half way its length; that there the handlebars of the bicycle caught about the center of the truck, and the rear wheels of the truck ran over it; that the truck stopped after it hit him, "it run 12 or 14 feet"; that just before the plaintiff hit the truck, he was going down the street in a diagonal course, not direct, just a little to the left; that he saw the bicycle as it passed the front wheels of the Pepsi Cola truck 2 or 3 feet to the left, he would estimate, and at that moment there was nothing, no other vehicle, to the left of the bicycle; that there was just a short distance between it and the Furniture Company's truck, the latter being "just slightly behind the bicycle"; that the bicycle was ahead of the truck, but not directly in front of it; that he did not see or hear any signal of the Furniture Company's truck; that the truck was traveling with more speed than the bicycle; that though there were automobiles down there in front of the truck, going in direction of stop light, "this truck was not jammed up against the car it was following", there was a space between the truck and the next vehicle; and "all of the vehicles were moving"; that the bicycle was in the space north of the truck, and north of "that line of traffic".
George E. Parrish, as witness for defendant Furniture Company, testified substantially as follows: That going west on Chapel Hill Street, just as he passed Roney Street, 90 or 100 feet back of where the accident happened, he saw plaintiff's bicycle going in same direction, 10 or 15 feet in front and to the right; that his truck was traveling at rate of 10 to 15 miles per hour, a little faster than the bicycle, and overtook it in about 30 feet; that "having last seen the bicycle about sixty feet down the street going along behind the body of the truck", he proceeded on his way towards Five Points, and just as he got even with the Pepsi Cola truck he heard "this noise, a rattling noise on the pavement", and stopped and went back to plaintiff, who was lying 2 or 3 "might be 3 to 8 feet" ahead of the left fender of the Pepsi Cola truck; that plaintiff said "that he didn't see how it could be my fault; that the Pepsi Cola truck was opening the door; that he dodged *** and ran into the side of my truck"; that the distance between the right side of his truck and that of Pepsi Cola truck was somewhere between 4 1/2 and 5 feet; that his truck was not over a foot and a half from center line of street; that at time of the accident he was following in the line of traffic on way to the intersection, and had begun to slow down for the stop light, slowing up behind cars which were traveling slowly; that at least one car stopped but he thinks the light was in the act of changing from green to red at time he was slowing up behind the cars.
Then on cross examination this witness further testified: When I first saw George Tarrant he was traveling in a line of traffic. I was catching up with the line of traffic. I was not far behind. *** The bicycle was somewhere in between me and the traffic. *** The bicycle was almost down to where the cars were when I was catching up with it". Then on being asked this question, "What was between you and the bicycle up to the time you got opposite the truck of the Pepsi Cola Bottling Company?", he answered, "The line of traffic that I was following and the bicycle was almost together ***". Then to this question, "The line of traffic was in front of you, wasn't it?", he answered, "Yes, the line of traffic was in front of me and the bicycle was somewhere along in there with the traffic ***", and continuing, he said And, continuing, on redirect examination, the witness said: "I was traveling at rate of 10 or 15 miles back up the street and I had applied my brakes to slow up behind the cars and I probably come to about 8 or 10 miles per hour speed at the time."
Defendant Furniture Company also introduced in evidence provisions of the City Code...
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