White v. Dickerson, Inc.

• Decision Date: 24 September 1958
• Docket Number: No. 25,25
• Citation: 105 S.E.2d 51,248 N.C. 723
• Parties: Katie H. WHITE v. DICKERSON, Incorporated.
• Court: North Carolina Supreme Court

Page 51

105 S.E.2d 51

248 N.C. 723

Katie H. WHITE v. DICKERSON, Incorporated.

No. 25

Supreme Court of North Carolina.

Sept. 24, 1958

Wilkinson & Ward, Washington, D. C., for plaintiff, appellee.

Rodman & Rodman, Washington, D. C., for defendant, appellant.

PARKER, Justice.

Defendant assigns as errors the denial of its motions for judgment of nonsuit made at the close of plaintiff's evidence, and renewed at the close of all the evidence.

On 16 December 1956, and prior thereto, defendant was engaged, under contract with the State Highway and Public Works Commission, in the construction of a bridge over a canal on State Highway No. 99 at a point in Washington County about one mile northwest of the Beaufort County line. This is a hard-surfaced highway running between the towns of Pantego and Plymouth. On 16 December 1956 defendant had removed the old bridge on the highway over the canal, and had constructed a temporary detour road and detour bridge over the canal for traffic. This detour was to the left of the highway, when one travels from Pantego to Plymouth. The canal was about 25 feet wide and about 12 feet deep, where the bridge on the highway was out. A highway running along the bank of the canal intersected Highway No. 99 at a 65 to 70 degree angle east of the bridge being constructed, which is on the side toward Pantego, at the identical spot where the temporary detour road leads off from the highway on the opposite side.

About 15 or 20 minutes before 7:00 o'clock on Sunday morning, 16 December 1956, plaintiff and her husband, W. T. White, left their home in Pantego in their 1949 Chevrolet to go to Plymouth on Highway No. 99 to visit their son. They did not know that the bridge over the canal on this highway was out. Their car was in good condition. Plaintiff was 67 years old, and her husband 73.

When they left home, there was no fog. As they approached the line between Beaufort and Washington Counties, they ran into fog on the road. As they approached the place where the bridge over the canal was out, it was so foggy one could not discern too much daylight. It is about 11 miles from Pantego to where the bridge was out. J. H. Williams, Safety Engineer for the defendant and one of its witnesses, testified on cross-examination: 'I had seen prior to that (16 December 1956) that the area had a tendency to become foggy around those water-courses. The amber light is one of the best we can get, the best we have been able to obtain to shine through fog. We used the amber light on that side (the Plymouth side) because as fall progressed we realized that we would have fog. ' W. J. Starr, resident engineer of the State Highway and Public Works Commission, who had jurisdiction over the construction work of the bridge over the canal and was a witness for defendant, testified on cross-examination that he was familiar with the area where the bridge over the canal was out and that 'it is especially likely to have fogs on account of the water-courses that run through it. Fog is anticipated by everybody.'

Plaintiff's husband was driving their car, and she was riding on the front seat. She had good vision. Her husband testified: 'My vision on the morning of the 16th of December 1956 was fairly good. I could see well enough to drive an automobile, and drive it well. ' On 20 January 1955 he had successfully taken the examination for an operator's license.

Plaintiff testified on direct examination: 'I was keeping a sharp lookout because of the fog. I did not see any light or any sign up the road any distance from the place that we later fell into the canal. I saw a light just seconds before the car which my husband was driving ran into the canal. I said, 'Oh, there's a light,' and he put on brakes and discerned it at the same time. * * * I could tell my husband applied the brakes to the car, because he stood right up in the car onto the brakes. I felt that the car was skidding with him on the brakes. No, I did not see the barricade as the car in which I was riding hit it. The next thing I knew I was in the canal, out of the car. I was thrown out of the car across a log. ' On cross-examination plaintiff testified: 'I know we had to slow down to just a creep when the fog was thick, and we think we were not making over 10 to 15 miles an hour. * * * After we left Pantego and ran into this fog, we discussed together about driving slowly and carefully because of the restricted vision. I was watching and he was driving. We were discussing the fog and having to take our time to get through it. He had his lights on. The lights were good * * *. I was not able to see anything ahead in the flow of the lights; I was watching out the side. I could see out the side window the edge of the road and I was telling him, and we were driving slow. I was looking ahead too, as well as the side. * * * I was looking out ahead and also looking out my side down at the edge of the pavement to see that he did not go too far to the right or the left. * * * If these signs that are lined up here against the wall of the courthouse were in place along the side of the highway on my side of the automobile, I do not think that I could have seen them under the foggy conditions prevailing unless one of them had been where there was not a streak of fog, but not at that bridge or for nearly a mile before we reached the bridge.'

As plaintiff's husband approached the canal, the ground fog began to cloud up his windshield. He testified on direct examination: 'I run my windshield wipers and that gave me a view in front and a watch down the road. I could see down the road with that and fog on the side. I did not look for the sides because I knew it was foggy. * * I was looking ahead. Before I got to this place that I later ran into, I did not see any signs at all; no lights until I got right close to the bridge. I suppose it would be about 40 feet from the bridge, when I saw a light on the side, and I knew there was a filling station ahead. The filling station was just beyond the bridge over on the right. It is on the south side of the highway. I heard my wife cry out to me; she says 'There is a light.' I put on brakes, and about the time I put on brakes, I discerned a barricade ahead of me. Of course, I applied brakes heavier and locked the wheels so she just skidded right on up to the barricade, pushed it over, rolled down the barricade in the bottom of the ditch. ' After he got out of the canal, he saw two flares sitting on the right side of the road on the Pantego side. They were not burning. He testified on cross-examination: 'I was driving about 30 to 35 miles per hour when I come in the fog, but when I got near the thick fog coming out of the canal, I had to slow my speed of course. I slacked up my speed, and when I saw the light, I saw the barricade, you might say, just an instant after I saw the light, and I put on my brakes sufficient to stop. I pushed the barricade into the canal. * * * My wife could see on her side and I could see on mine, only directly ahead; that is all. The windows were up. * * * I did not see a smudge pot that had been knocked over into the canal by my automobile. * * when I discovered the barricade was just across the ditch, and I proceeded to stop and the roads were so slippery I could not make it. She skidded right on in it. * * * I could not see anything on the side on account of the fog.'

Jack Ahearn is Assistant Chief of Police in Belhaven, and lives in Pantego. About 5:30 or 5:45 on Sunday morning 16 December 1956, he was driving his car on Highway No. 99 from Pantego to Plymouth, carrying three hunters from Massachusetts to take a plane at Edenton. Plaintiff and her husband about two hours later travelling on the same highway ran through the barricade into the canal. Ahearn did not know the bridge over the canal was out. This is his testimony on direct examination: 'I was right on the bridge before I saw anything. I saw that one flare to the left of the barricade. That is the only thing I observed in approaching the barricade was the one flare. As I approached the barricade, it was kind of slick. There was mud and grass that had been packed there, and when I saw the light I applied my brakes, and I skidded into the barricade itself then. I don't think I knocked it completely down, but I tore it up and it was flimsy. I got out of the car after I hit it. I believe it was just plain lumber with plain boards just nailed up there. I believe there were three crossboards that were nailed up there. * * * They were not painted. There were not any signs on the boards. After I got out of the car I could see how close I had come to going into the canal. I would say I was about six inches from the end of the pavement where it dropped off there. I would say those boards I have described were erected about 3 or 4 feet from the edge of the canal. * * * We tried to put part__part of the barricade was down, and we tried to put it back up, and we just left there; done the best we could with it. There was not any light visible from that, blinker there which says 'Open Trench,' or one similar to it, as you approached this detour from the Pantego direction. ' He testified on cross-examination: 'There was a pretty heavy fog. * * * I would say I could see 35 to 50 feet in the fog, not clearly, but I could see enough to drive. * * * I did not knock it (the barricade) completely down; I believe I did break one board, the bottom board. * * * I said there was a light there to the left. It was burning when I left because we moved it over in the middle of the barricade when we left, and out to the front. * * * I thought the light should be in front of the place where it was broken. That was where the danger point was. * * * I would say I was there ten minutes fixing the barricade I ran into.'

Roy Jackson and Eddie Jones in Jackson's car went over this road seven days a week going from Pantego to Plymouth to their work in a pulp mill in...