Thames v. Nello L. Teer Co., 766

• Decision Date: 16 June 1966
• Docket Number: No. 766,766
• Citation: 267 N.C. 565,148 S.E.2d 527
• Court: North Carolina Supreme Court
• Parties: J. W. THAMES v. NELLO L. TEER COMPANY.

Page 527

148 S.E.2d 527

267 N.C. 565

J. W. THAMES v. NELLO L. TEER COMPANY.

No. 766.

Supreme Court of North Carolina.

June 16, 1966.

Newsom, Graham, Strayhorn & Hedrick, by Ralph N. Strayhorn, E. C. Bryson, Jr., Durham, for plaintiff appellee.

Nye & Mitchell, by Charles B. Nye, R. Roy Mitchell, Jr., Durham, for defendant appellant.

HIGGINS, Justice.

The plaintiff is a resident of Durham County, North Carolina. The defendant is a corporation organized under the laws of Delaware, with its principal office in Durham, North Carolina. The accident in which the plaintiff was injured occurred in Virginia. The action having been instituted in North Carolina, liability must be determined according to the substantive law of Virginia, of which we must take notice. G.S. 8--4; Kirby v. Fulbright, 262 N.C. 144, 136 S.E.2d 652; Conard v. Miller Motor Express, 265 N.C. 427, 144 S.E.2d 269; Crow v. Ballard, 263 N.C. 475, 139 S.E.2d 624; Doss v. Sewell, 257 N.C. 404, 125 S.E.2d 899.

The defendant's assignments of error as shown by the record involve the court's ruling on evidence and the charge to the jury. However, all are abandoned in the brief except the failure of the court to sustain the motion for nonsuit. The single assignment of error requires us to examine only so much of the plaintiff's evidence as is favorable to him and to determine therefrom whether, in its light most favorable to him, it is sufficient, in law, to permit the jury to find he was injured by the defendant's actionable negligence; and, if the answer be in the affirmative, then whether his own evidence establishes his contributory negligence so clearly that no other reasonable inference may be drawn from it. Southern Railway Co. v. Woltz, 264 N.C. 58, 140 S.E.2d 738.

The plaintiff's evidence disclosed in substance that the defendant was the contractor engaged in constructing the Beltway around Washington. The southern lane where the accident occurred had been graded, had been rolled and scraped, and was in use by the subcontractors on the job. This graded and scraped section was 60 to 80 feet wide. Separating this southern section from the unfinished northern section, of equal width, was an unfinished median strip 20 to 30 feet wide, six to twelve inches lower than the southern lane. At the time, a number of defendant's Caterpillar scrapers, each weighing about 100,000 pounds and equipped to carry about 50 tons of earth, were engaged in spreading dirt to build up the northern traffic lanes. These tractors were moving dirt from east to west. The plaintiff was driving from the west towards the east. He was carrying tools for the use of the men beginning the day's work at the culvert.

One of the dirt-spreading machines, after releasing its load, made a short, quick turn to its left, crossed the median strip, and ran into the left side of the plaintiff's pickup, which was continuing toward the culvert. The left door of the pickup was cut almost in two, the windshield broken, and the plaintiff thrown from the vehicle. He was seriously and permanently injured.

The plaintiff testified: 'I was driving up the road and over to the left of me they were still building another lane of the road upon which they were using heavy equipment and this turnapull came down spreading dirt. He was running fast, is why we taken notice of him. He looked like he was coming terrific fast and we passed. I did not look back and the next thing I knew we received a blow. At the time, I did not know where the blow came from. I didn't even know what had struck us. I was lying on the ground when I came to. The front end of this heavy piece of equipment was over the top of the truck from the left side.' * * * 'I had gotten by him and he came up from my left rear. I * * * was traveling 20 to 25 miles per hour.'

Mr. Gray, riding with the plaintiff, testified: 'When I observed the turnapull it was coming between 40--45 miles per hour. When we got just about * * * opposite each other * * * we were going on down, then I heard the motor--some motor--seemed like right close to us and I glanced around to my left and saw the turnapull and it was right on the truck. * * * The turnapull had room to turn around right or left to make his U-turn. He was about the...