Wells v. Burton Lines Inc

• Decision Date: 19 December 1947
• Docket Number: No. 665.,665.
• Citation: 45 S.E.2d 569,228 N.C. 422
• Court: North Carolina Supreme Court
• Parties: WELLS. v. BURTON LINES, Inc., et al. STANLEY. v. SAME.

45 S.E.2d 569

228 N.C. 422

WELLS.

v.BURTON LINES, Inc., et al.

STANLEY.

v.SAME.

No. 665.

Supreme Court of North Carolina.

Dec. 19, 1947.

Appeal from Superior Court, Guilford County; J. A. Rausseau, Judge.

Actions by Thomas Wells against Burton Lines, Inc., and Clyman H. Johnson (original parties defendant), and Charles Stanley (additional party defendant), and by Charles Stanley against Burton Lines, Inc., and Clyman H. Johnson for damages sustained in an automobile collision. The actions were consolidated for trial. From adverse judgments, defendant Johnson appeals.

No error.

Civil actions to recover for personal injuries and damages to the car of Charles Stanley, sustained in an automobile collision. The actions were consolidated for trial.

The pertinent facts are as follows:

1. On 19 December, 1945, about 5:30 P. M, the plaintiff, Charles Stanley, was operating his automobile in a southerly direction on the Greensboro-Asheboro Highway about ten. miles south of Greensboro. The plaintiff, Thomas Wells, was riding in Stanley's automobile as a guest passenger.

2. A tractor-trailer unit belonging to the defendant, Burton Lines, Inc., loaded with hogsheads of tobacco, had been left during the night of 18 December, 1945, by its agent on the east side of the highway, headed north. Sleet and snow had fallen and the brakes on the tractor-trailer unit became frozen and the equipment rendered immobile. This equipment was parked partially upon the shoulder of the highway and partially on the paved portion thereof. The pavement was about 18 feet in width and the equipment of the Burton Lines, Inc., occupied 3 to 4 feet of the paved portion of the highway. Red flags were placed along the highway in both directions for several hundred feet, by the driver of the tractor-trailer unit, but no flares.

3. North of the point where the Burton Lines equipment was parked the highway is straight, level and the view unobstructed for a distance of 600 to 700 feet. To the south of the parked vehicle the road was slightly down grade, straight and the view entirely unobstructed for about 300 feet, but one could partially see a vehicle where the truck was parked for approximately a half a mile.

4. The defendant Johnson was traveling north. The automobile operated by the plaintiff Stanley had passed the Burton Lines tractor-trailer and was about 30 feet south of it when the collision occurred between his car and the Johnson car. According to the answer of the defendant, Clyman H. Johnson, the automobile of the plaintiff Stanley was being driven at a lawful rate of speed and in a lawful manner; and he does not plead contributory negligence against the plaintiffs.

5. The evidence further tends to show that the Stanley car was traveling about 25 miles per hour and the Johnson car was being driven about 40 to 50 miles per hour; that the dim headlights were on the Stanley car and no lights were burning on the Johnson car. At the time of the collision it was getting dark, but one could see how to drive without headlights. The weather was cloudy. Both plaintiffstestified that they saw the Burton Lines equipment when they were 300 to 400 feet from it. The snow on the paved portion of the highway had been scraped off, but it was icy in places.

The plaintiff Stanley testified: "I was about midway of the truck when I first saw the Johnson car. * * * I would say the Johnson car when I first observed it was approximately 125 feet away." When the defendant Johnson reached a point about 50 or 60 feet south of the Burton Lines equipment, he applied his brakes and swerved or skidded to his left and collided with the plaintiff Stanley's car. The defendant had been over this road a few hours before the accident and had seen the Burton Lines equipment parked on the east side of the highway. Johnson testified that he approached the scene of the collision traveling about 25 miles per hour; that the weather was cloudy at the time; that it was between dim and dark; not what you would call pitch dark; that he did not see the truck until he got within approximately 30 feet of it, that he applied his brakes, turned cross-ways of the road, went by it and before he could do anything he was hit by the Stanley car, but then he said he brought his car to a dead stop on the west side of the highway and that the collision "took place approximately 30 feet back of the truck on the west side of the highway." He also testified his headlights were burning and that he saw no red flags displayed along the highway or on the truck.

At the conclusion of the plaintiffs' evidence the defendant Burton Lines, Inc., moved for judgment as of nonsuit as to it. The motion was denied but upon a renewal thereof at the close of all the evidence the motion was allowed.

The issues of negligence and damages were answered in favor of the plaintiffs and against the defendant Johnson.

From the judgments entered on the verdict, the defendant Johnson appealed, assigning error.

James E. Coltrane, and D. Newton Farnell, Jr., both of Greensboro, for Thomas Wells and Charles Stanley, plaintiffs, appellees.

Smith, Wharton & Jordan and Arthur O. Cooke, all of Greensboro, for Burton Lines, Inc., appellee.

Sapp & Moore, of Greensboro, for defendant Clyman H. Johnson, appellant.

DENNY, Justice.

The appellant assigns as error the refusal of the court below to allow his motion for judgment as of nonsuit as to both plaintiffs; and...