Wallace v. Longest
| Decision Date | 06 March 1946 |
| Docket Number | 89 |
| Citation | 37 S.E.2d 112,226 N.C. 161 |
| Parties | WALLACE v. LONGEST. RIVENBARK v. SAME. HOUSE v. SAME. |
| Court | North Carolina Supreme Court |
Three civil actions for recovery of damages in the sums of $50,000, $30,000 and $18,000, respectively, allegedly sustained by the respective plaintiffs in a motor vehicle collision as result of actionable negligence of defendant through its agent and employee.
These actions were begun in Superior Court of Halifax County and upon motion of defendant, removed to and, after consolidation for purpose of trial, tried in Superior Court of Edgecombe County.
These facts appear to be uncontroverted: At about 8:30 o'clock on the morning of 29 September, 1944 the 1/2 ton Ford pick-up truck of plaintiff R. H. Wallace, operated by him in a northerly direction on U. S. Highway No. 301 between Enfield and Halifax, North Carolina, and in which plaintiffs W. B Rivenbark and Clyde G. House were riding, and a large 1941 Mack truck and trailer owned by defendant F. B. Longest trading as Longest Lumber Company, and operated by Prince Wiggins, agent and employee of said defendant in the scope and course of his employment, and traveling on said highway in a southerly direction toward Enfield, North Carolina, came into collision at a point on said highway about 5 1/2 miles north of Enfield and near or within the vicinity of the residence of one J. J. Collie. And the several plaintiffs sustained personal injuries as a result of such collision.
Plaintiffs in their respective complaints allege, in substantial accord, that at the time of the collision R. H. Wallace was driving his said Ford truck in a careful and prudent manner in full compliance with the traffic laws of the State of North Carolina on his right hand side of the paved highway; that as the Ford truck and defendant's Mack truck with trailer approached each other, when said trucks were approximately sixty feet distant from each other, driving in opposite directions, the defendant's agent Prince Wiggins 'in violation of the laws of the State of North Carolina and in complete disregard of the safety of others and particularly of this plaintiff, without regard for existing traffic and without warning, suddenly drove said huge Mack truck and trailer sharply over and upon his left hand side of said paved highway and in the left lane of said highway in front of the approaching Ford truck operated by' Wallace; that plaintiff, Wallace, 'confronted by the sudden emergency caused by the aforesaid unlawful and negligent action of the defendant's agent or employee, * * * attempted to drive said Ford truck out of the path of defendant's huge Mack truck and trailer by driving said Ford truck as far off the paved portion of the highway and onto the dirt shoulder to his right as possible,--there being at said place a deep ditch to the right of the shoulder of said highway'; that although plaintiff Wallace 'made every effort to avoid a head-on collision as aforesaid, the defendant's said agent or employee unlawfully negligently, recklessly and carelessly, in complete disregard of the safety of this plaintiff, continued to drive said huge lumber truck with trailer on the wrong side and in the left lane of said paved highway in violation of the laws of this State, in front of the vehicle operated by plaintiff' Wallace 'and against the same, then and there striking and colliding with the vehicle operated by plaintiff, completely demolishing said Ford truck and severely, painfully and permanently injuring the plaintiff,' etc.; and 'that the carelessness and negligence of the defendant's said agent or employee in operating said Mack Lumber truck and trailer in the aforesaid unlawful manner, on the wrong half of the public highway under such circumstances as aforesaid, without regard for the existing traffic going in the opposite direction, was the sole and proximate cause of the collision herein complained of and all of the aforesaid injuries and damages to this plaintiff.'
Defendant, answering, denies the above allegations of the several complaints in material aspects, and sets forth his version of how the collision took place--through no fault of his driver, Prince Wiggins, but solely as proximate result of the sudden emergency created by the unexpected and unlawful act of plaintiff Wallace when at a point some 15 or 20 feet or some short distance in front of defendant's truck, and when running at speed of 40 miles per hour, in suddenly turning his Ford truck from his right side of the highway to the left, that is in a westerly direction, across the road, and colliding on the right front side of said Ford truck, with the left front end of defendant's Mack truck.
And, defendant, answering complaint of plaintiff Wallace, pleads his negligence as a contributing cause of his injury in bar of his recovery.
The statement of case on appeal to which attorneys for plaintiff and for defendant agreed shows the following: 'After the pleadings were read and before any evidence was introduced, the parties stipulated in open court, ' that the photographs marked 1 plaintiff, 2 plaintiff, 3 plaintiff, * * * are authentic photogaphs of the location of the accident, looking north * * * And it is further stipulated, and this stipulation is not to be considered an introduction of evidence by the defendant at this time, that the photographs marked 1 defendant, 2 defendant and 3 defendant, are authentic photographs of the Mack truck belonging to F. B. Longest involved in the accident; and that the photographs marked 4 defendant, 5 defendant and 6 defendant, are authentic photographs of the Ford pick-up truck involved in the accident,--these photographs being taken on the 14th of October, 1944, and that the pictures of the Mack truck do not include the Kingham trailer described in the complaint."
But it is noted here that while the photographs marked 1 plaintiff, 2 plaintiff and 3 plaintiff were referred to by plaintiff's witnesses in connection with and in illustration of their testimony, the record fails to show that they were offered in evidence.
And, furthermore, while the photographs marked 1 defendant, 2 defendant and 3 defendant were identified by one witness, as a fair representation of defendant's truck after the accident, and while the photographs marked 4 defendant, 5 defendant and 6 defendant were identified by the same witness, as a fair representation of the Wallace pick-up truck after the accident, the record fails to show any oral testimony as to the condition of the trucks after the collision, which these six photographs might have illustrated, and the record fails to show that any of these photographs were offered in evidence.
Plaintiff offered evidence tending to show this narrative of pertinent facts surrounding and pertaining to the accident: The highway at the point of collision runs about north and south. At that point there is a curve described as one 'you can safely make at 60 miles an hour. ' The highway has a concrete surface 17 1/2 or 18 feet in width, with black marked center line. From the north toward the point of collision there is 'just a little bit of downgrade. ' Traveling north and approaching the point of collision, there is on the right, or east side, of the highway, a ditch running parallel with, and probably 8 or 9 feet from the hard surface. The depth of this ditch is variously estimated to be from 2 1/2 to 4 feet. The width of it may be 2 1/2 to 3 feet. The shoulder of the road between the hard surface and this parallel ditch is fairly level. 'It tapered off down to the ditch. ' This parallel ditch connected with a deeper ditch which ran west into a culver underneath the highway. There was no bridge...
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