Weavil v. Myers

Decision Date13 January 1956
Docket NumberNo. 391,391
Citation90 S.E.2d 733,243 N.C. 386
PartiesOdell WEAVIL, Administrator of Dennis Freemont Weavil, Deceased v. Clyde W. MYERS and C. W. Myers Trading Post, Inc.
CourtNorth Carolina Supreme Court

Deal, Hutchins & Minor, Winston-Salem, for plaintiff, appellant.

Jordan & Wright, Greensboro, for defendant, appellee.

PARKER, Justice.

The material allegations of the complaint are substantially these:

About 7:00 p. m. on 26 November 1954, the defendant C. W. Myers Trading Post, Inc., owned a large Reo Truck with a flat, wooden bed, which it used in hauling lumber, and which at the time was being driven on State Highway 311 about three miles from Winston-Salem, North Carolina, with a large load of rough lumber on it by Zachary Battle, a servant and agent of the corporate defendant, within the scope of his employment, in furtherance of his master's business, and for the purpose for which the corporate defendant owned and maintained the truck. The bed of the truck was four feet, or more, above the highway, and an improvised second-hand bed had been placed upon the chassis and frame of the truck, which was 12 inches, or more, longer than the framework of the truck. The rough lumber on the truck extended ten feet, or more, above the bed of the truck. The lumber was 12 feet, or more, in length with two lengths of the lumber placed end to end on the truck. The load of lumber extended more than four feet beyond the bed or body of the truck. The corporate defendant should have had at the end of this load of lumber in such a position as to be clearly visible at all times from the rear of such load a red flag, red reflector, or red light, or other warning device, plainly visible under normal atmospheric conditions at least two hundred feet from the rear of the truck, and it violated the statute in this respect as set forth in G.S. § 20-117.

About three miles from Winston-Salem the truck was being driven at a speed greater than 45 miles an hour, when the front and rear lights of the truck went out. Whereupon the driver, Zachary Battle, without giving any signal that he intended to stop, brought the truck to a sudden and abrupt stop, within a distance of about 54 feet, on or near the center of the paved portion of the highway, when he could have driven the truck off the paved portion of the highway and on the right shoulder, where there was ample space. Simultaneously Zachary Battle turned on his left-turn signals on the truck, indicating a forward movement of the truck to the left, when he had no intention of turning or driving forward. Plaintiff's intestate following in his Ford automobile ran into the rear of the truck, and received injuries resulting in death. Zachary Battle, and his helper, put a reflector, flare and fusee 200 feet in front of the parked truck, but none to the rear of the truck, though they had sufficient time to do so. The defendant, and its agents, knew, or should have known, that the color of the highway, truck and lumber were about the same, and blended together. The defendant should have had reflectors placed on the rear of the lumber, so that the reflectors would disclose the presence of the truck, if its lights were not burning. That the turning on of the left-turn signal on the truck prevented plaintiff's intestate from passing the truck on the left in safety.

That plaintiff's intestate was prevented from passing on the left side of the truck on account of the left-turn signals thereon, and was forced to turn back and follow in behind the truck, as it was supposed to turn left, but instead of turning left, the truck abruptly stopped making it impossible for him to avoid a collision. The automobile of plaintiff's intestate collided with the lumber protruding beyond the bed of the truck. The lumber penetrated the windshield of the car, and practically decapitated plaintiff's intestate, causing instant death.

The collision, and resulting death of plaintiff's intestate, was caused by no fault, or negligence on his part, but was proximately caused by the negligence of the corporate defendant. Here follow ten specific allegations of negligence based upon the facts narrated above.

The corporate defendant demurred to the complaint on two grounds: one, it appears on the face of the complaint that the defendant, and its agents, were not guilty of actionable negligence, two, that plaintiff's intestate, according to the complaint's allegations, was guilty of contributory negligence as a matter of law.

The judgment states that, the court being of the opinion that the complaint fails to state a cause of action, the demurrer is sustained.

A complaint cannot be overthrown by a demurrer, unless it is totally lacking in sufficiency. McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568; Anderson Cotton Mills v. Royal Mfg. Co., 218 N.C. 560, 11 S.E.2d 550. If the complaint, in any portion of it, or to any extent, presents facts sufficient to constitute a cause of action, or if facts sufficient for that purpose can be fairly gathered from it, it will survive a demurrer based on the ground that it does not allege a cause of action. Workman v. Workman, 242 N.C. 726, 89 S.E.2d 390; Batchelor v. Mitchell, 238 N.C. 351, 78 S.E.2d 240; Bryant v. Little River Ice Co., 233 N.C. 266, 63 S.E.2d 547.

Upon this demurrer we take the allegations of fact in the complaint as true: the demurrer does not admit conclusions, or inferences of law. McKinley v. Hinnant, supra.

Construing the complaint liberally 'with a view to substantial justice between the parties', G.S. § 1-151, and with every reasonable intendment made in favor of the pleader, Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365, it is manifest that the complaint alleges a cause of actionable negligence against the corporate defendant sufficient to survive the first ground of assault set forth in the demurrer. The failure of the defendant to display a red light at the end of the lumber, which extended more than four feet byond the rear of the bed or body of the truck, plainly visible under normal atmospheric conditions at least 200 feet from the rear of the truck, between one-half hour after sunset and one-half hour before sunrise, as required by G.S. § 20-117, was negligence. Bumgardner v. Allison, 238 N.C. 621, 78 S.E.2d 752; Williams v. Fredrickson Motor Express Lines, 198 N.C. 193, 151 S.E. 197. We take judicial notice of the fact that about 7:00 p. m. on 26 November 1954, in North Carolina, was within the time between one-half hour after sunset and one-half hour before sunrise. 31 C.J.S., Evidence, § 100, p. 700. Plaintiff's intestate's automobile ran into the rear end of the lumber on the truck, which truck had abruptly stopped on or near the center of the highway and had a left-turn signal on, and the lumber penetrated the windshield of his automobile practically decapitating him and causing instant death. It is a fair and reasonable inference that the corporate defendant in the exercise of due care could have reasonably foreseen that the failure to have the required light at the end of the lumber on its truck, which was being driven on a public highway at night, and which might have some casualty on the road and have to stop, might result in injury or death to some person, or that consequences of an injurious nature might have been expected, and that such failure proximately caused the death of plaintiff's intestate. Without considering the other facts alleged as actionable negligence, these facts alone are...

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  • Shoemaker v. Funkhouser
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    ...presume the due care of others until he knows or in the exercise of reasonable care should know otherwise."); Weavil v. Myers , 243 N.C. 386, 390-91, 90 S.E.2d 733, 737 (1956) ("It is a well settled principle of law that a person is not bound to anticipate negligent acts or omissions on the......
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