Weavil v. C. W. Myers Trading Post, Inc.
| Decision Date | 12 December 1956 |
| Docket Number | No. 384,384 |
| Citation | 95 S.E.2d 533,245 N.C. 106 |
| Court | North Carolina Supreme Court |
| Parties | Odell WEAVIL, Administrator of Dennis Freemont Weavil, Dec'd., V. C. W. MYERS TRADING POST, Incorporated. |
Deal, Hutchins & Minor, Winston-Salem, for plaintiff, appellant.
Jordan & Wright, Greensboro, for defendant, appellee.
This is the second time this case has been before the Court. The first appeal was from a judgment sustaining a demurrer to the complaint. The judgment was reversed. Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733.
The plaintiff has appealed a second time, and his assignments of error, except formal ones, are to the charge of the court alone.
About 7:00 p. m. on 26 November 1954, a dark night, Zachary Battle, an employee of defendant and on his employer's business, with Eugene Davis riding with him, was driving to Winston-Salem on State Highway No. 311 at a speed of about 35 miles per hour a truck of the defendant loaded with lumber about 10 feet high. The truck was a 1949 Reo with a 20 foot bed on it, steel trimmings, and a flat wooden floor. According to a witness for the plaintiff, the load of lumber extended 5 feet or more behind and beyond the body of the truck. Neither a red flag nor a red light was displayed at the end of the load. The end of the load had no reflectors. Zachary Battle and Eugene Davis were the only eye witnesses to the collision, except plaintiff's intestate. Battle and Davis were examined adversely by plaintiff before trial, and at the trial plaintiff introduced their examinations in evidence. The head lights, tail lights and clearance lights worked on the same fuse. As Battle was driving along the road with his head lights, tail lights and clearance lights on, the main fuse blew out, and his head lights, tail lights and clearance lights went out. Battle stopped the truck in about two of its lengths. When the truck stopped, Battle saw no lights of a car approaching from the rear or meeting him from the front.
The truck had a signal light on each front fender, and two signal lights on the rear of the truck, one on each side. 'The signal lights were on the frame of the truck, right on the side * * * they were flush with the back end of the steel bed.' The signal lights were on a different fuse from the head lights, tail lights and clearance lights. The signal lights could only be turned on by knocking them on, and could only be turned on one side at the same time.
When the truck stopped, Battle immediately knocked on his left-turn signal lights, because he did not know where his truck was on the highway, but did know the lefthand side of it was farther on the highway than its right-hand side. He also testified he knocked on the left-turn signal lights, so people coming could have some light. He further testified he did not intend to turn to the left with his stopped truck, although a left-turn signal indicates a left turn: 'that is what it is supposed to be.' Before the truck stopped, Eugene Davis jumped off it with a flare, ran down the highway in front of it about 200 feet, and placed the flare on the highway. As he started back to the truck the collision occurred. Davis testified that before the collision occurred he saw the truck's left-turn signals flashing for a left turn. Battle got a flare, and, as he was getting out of the truck, he saw a flash of light in his rear view mirror, heard something 'rip' that sounded like brakes, and an automobile driven by plaintiff's intestate crashed into and under the rear of the truck. That was about a minute after the truck's head lights, tail lights and clearance lights went out. No car was approaching the stopped truck from its front at the time of the collision. A piece of lumber from the rear end of the truck penetrated the windshield of the automobile driven by plaintiff's intestate, and practically decapitated him, causing almost instant death. Plaintiff's intestate had the lights of his automobile on.
State Highway Patrolman E. W. Mabe, the sole witness for the defendant, examined the lighting system of the truck at the scene shortly after the collision. He testified:
Patrolman Mabe further testified substantially as follows: The concrete pavement of the highway where the truck stopped was 22 feet wide. The truck stopped on its right-hand side of the pavement with the left rear of the truck about a foot and a half to the right of the center line on the highway. There were three feet of driveable space on the right shoulder beside the stopped truck. South of the stopped truck and behind it the highway was straight and approximately level for about 800 to 1,000 feet, and to the North of the truck it was straight and about level between 350 to 400 feet. Single wheel skid marks for a distance of 39 feet led up to the rear wheels and front wheels of plaintiff's intestate's automobile at the scene of collision.
One of the allegations of negligence in the complaint is that Zachary Battle, when he stopped the truck, turned on his leftturn signals indicating his intention to make a left turn from the highway, though he had no intention of doing so, making it dangerous for plaintiff's intestate to pass the truck on its left, and forcing plaintiff's intestate to turn back on his right side of the highway, thus setting a trap for plaintiff's intestate from which it was impossible for him to extricate himself, which negligence was a proximate cause of his death. The answer alleges that, when Battle stopped his truck, he turned on the left-turn electrical signal lights on the truck; and the answer in alleging further defenses states, when the truck stopped Battle switched on the left-turn signal lights, thereby causing a flashing red light to be emitted from both the left-hand rear and left-hand front portions of the stopped truck.
Plaintiff's first assignment of error is based upon his Exceptions 1, 2, 3, 8 and 9. All these Exceptions have reference to the charge in respect to the signal lights on the stopped truck. Exception 1 is to the part of the charge in quotation marks that the defendant has offered evidence tending to show that, as soon as the truck stopped, Battle turned on the signal lights, 'that it was not a signal light indicating a left-hand turn, but was only a flashing light.'
The court charged as follows:
'(Now,there has been argument in this case and evidence tending to show that Battle, the operator of defendant's vehicle, when he stopped, turned on signals that were not operated by the main lighting mechanics of the vehicle, the plaintiff contending that he turned on a left-hand turn, a directional signal; the defendant contending that he only turned on a flashing light which would notify vehicles coming from both ways that he was there).
'Now, if you find from this evidence that the signal which he turned on was a directional signal, indicating a lefthand turn, then that would have been an indication to a person or operator of a vehicle coming from behind that he intended to turn left, and such person coming from behind had a right to rely upon that action, that he was intending to turn from a direct line to the left.
'(On the other hand, if you find that it was not a directional signal, indicating a left-hand turn, but was only a flashing signal, indicating the presence of the vehicle on the highway at that particular point, then a person coming from behind would have been required, under the law, to bring his vehicle under control and stop, or, in the exercise of ordinary care, to pass to the left and go on).'
Plaintiff's Exception 2 is to the first part of this excerpt from the charge in parenthesis: his Exception 3 is to the last part in parenthesis.
Plaintiff's Exception 8 is to the following part of the charge in parenthesis, which immediately followed a part of the charge that gave plaintiff's intestate the benefit of the principle of a man confronted with a sudden emergency:
Plaintiff's Exception 9 is to this part of the charge in parethesis:
'Now, in Issue 2, if the defendant has satisfied you, from the evidence and by its greater weight, that Dennis Freemont Weavil, in the operation of his vehicle, was negligent in that he failed to keep a proper lookout in the direction in which he was traveling, or failed to keep his vehicle under reasonable control; or operated it at a speed...
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