Tyson v. Ford

• Decision Date: 14 April 1948
• Docket Number: 454
• Parties: TYSON v. FORD et al.
• Court: North Carolina Supreme Court

47 S.E.2d 251

228 N.C. 778

TYSON v. FORD et al.

No. 454

Supreme Court of North Carolina

April 14, 1948

Civil actions by Carrie T. Tyson and Warren Guy Tyson, Jr., mother and son, for damages to the mother's automobile and for personal injuries to the son when the mother's car, driven at the time by the sor on Highway No. 64 in Wake County, ran into the rear of a truck owned by the defendants and operated at the time by an employee Shirley Poole, it being alleged that the damages in both instances were caused by the negligence or default of the defendants. As both actions arose out of the same circumstances and rest upon the same evidence, by consent they were consolidated and tried as one case.

Around midnight of 14 December, 1946, Warren Guy Tyson, Jr., was driving his mother's automobile from Wendell to Raleigh on Highway No. 64, in company with two companions, Dorothy Kiely and Percy Stott, when the collision here under investigation occurred.

Young Tyson says he and his friends had been to Wendell to attend a wedding rehearsal. 'When we left there, Percy Stott, Miss Kiely and I were together in the Mercury car which I was driving. Miss Kiely was between me and Percy on the front seat. * * * I had traveled this road many, many times, and was thoroughly familiar with it. * * * My mother's car which I was driving with her knowledge and permission, was in good condition. * * * The lights were in good shape. * * * After we passed Hodge's Service Station, there is a long curve * * * and as we rounded one curve and hit a small hill then went over the hill, I suddenly saw a truck in the road ahead of me. Miss Kiely hollered 'look out Guy there is a truck', and I threw on the brakes at once. * * * We were too close when I saw it to put on my brakes and keep from hitting it, so I ran into it. * * * The truck was standing dead still in the road on the right-hand side as if it were going towards Raleigh, but it was not moving at all. Absolutely no sign of a light on it. * * * After I saw the truck, I did everything that I could to stop the car. In spite of my putting on brakes, I ran into the back end of the truck. * * * It was a cold, clear night. * * The truck was on the other side of the knoll or little rise. * * * I was driving between 40 and 45 miles an hour when I hit the truck. * * * If I had seen it in time, I could have turned to the left and avoided striking it. * * * The truck was on its right-hand side of the road. * * * No car coming from the opposite direction. * * *

'Q. The thing that kept you from either stopping or turning to the left was the speed you were driving when you saw him and there wasn't distance enough for you to stop or turn to the left, is that right? A. That is correct. * * *

'Q. Whatever the distance was at the time you did see it and at the speed you were going, you just couldn't stop before you hit it? A. That is right. * * * To tell the truth, the first thing I knew was when I saw that truck up in front of me'.

Miss Dorothy Kiely testified that when she saw the truck she called to Guy, 'There is a truck'; that he immediately slammed on the brakes, and the car struck the rear of the truck. 'I don't know how close we were to the truck at the time I saw the truck and Mr. Tyson put on his brakes. It seemed to me it loomed right up in front of us'.

Percy Stott testified that he was fagged out, and asleep at the time of the accident.

Fred Taylor arrived at the scene of the accident soon after it happened, and stopped to render assistance. The truck was loaded with cabbage. No lights were on the truck at that time. 'Cabbages had been piled all up on the hood, * * * one bag almost in the windshield laying up in a pile.'

At the close of plaintiffs' evidence, nonsuits were predicated on the contributory negligence of the driver of the Tyson car. From these rulings, the plaintiffs appeal, assigning errors.

J. B. Bilisoly and E. R. Sykes, Jr., both of Wendell, and Murray Allen, of Raleigh, for plaintiffs-appellants.

J. M. Broughton and C. Woodrow Teague, both of Raleigh, for defendants-appellees.

STACY Chief Justice.

The question for decision is whether the evidence suffices to carry the cases to the jury in the face of the demurrers. The trial court answered in the negative, and we approve.

Conceding the negligence of the defendants, which is denied in the answer but made manifest on the record, the cases were made to turn in the court below on the contributory negligence of the driver of the Tyson car. From his own testimony, it would seem that he was clearly and unmistakably 'outrunning his headlights' at the time of the collision. Weston v. R. R., 194 N.C. 210, 139 S.E. 237, 239; Allen v. Bottling Co., 223 N.C. 118, 25 S.E.2d 388; Caulder v. Gresham, 224 N.C. 402, 30 S.E. 2d 312. The tragic fact is, that when young Tyson first saw the truck he was too near it, at the speed he was going, to stop or to turn to the left before striking it. He so testifies. This certainly contributed to his misfortune, and was such conduct on his part as bars recovery to him and to his mother, the owner of the car. Penland v. Southern Ry. Co., 228 N.C. 528, 46 S.E.2d 303; McKinnon v. Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 47 S.E.2d 254.

It is true that the driver of the Tyson car was not bound to foresee or to anticipate that an unlighted truck would be left standing on the traveled portion of the highway ahead of him without flares or other signs of danger, but this did not relieve him of the necessity of keeping a proper lookout and proceeding as a reasonably prudent person under the circumstances. 'While the plaintiff had the right to assume that other motorists would not obstruct the highway unlawfully, and would show the statutory lights if they stopped, he could not for that reason omit any of the care that the law demanded of him. ' Steele v. Fuller, 104 Vt. 303, 158 A. 666, 667.

The test of liability for negligence, primary or contributory, is the departure from the normal conduct of the reasonably prudent man, or the care and prevision which a reasonably prudent person would employ in the circumstances. The rule is constant, while the degree of care which a reasonably prudent person is required to exercise varies with the exigencies of the occasion. Diamond v. Service Stores, 211 N.C. 632, 191 S.E. 358. For this reason, no factual formula can be laid down which will determine in every instance the person legally responsible for a rear-end collision on a highway at night between a standing vehicle and one that is moving. 'Practically every case must 'stand on its own bottom.' ' Cole v. Koonce, 214 N.C. 188, 198 S.E. 637, 639.

Curves and hills in the road are conditions a motorist is required to take into consideration in regulating his speed 'as may be necessary to avoid colliding with any person, vehicle or other conveyance '. G.S. s 20-141(c). 'He must operate his automobile at night in such manner and at such speed as will enable him to stop within the radius of his lights', if occasion should so require. Allen v. Bottling Co., supra [223 N.C. 118, 25 S.E.2d 389]. The present case however, is not predicated on this circumstance alone. Annotations: 44 A.L.R. 1403; 58 A.L.R. 1493; 87 A.L.R. 900. It is obvious that the driver of plaintiff's car was inattentive to the duty required of him for his own safety and that of his companions when he rounded the curve and topped the hill at a high...