White v. Mote, 849

• Decision Date: 20 June 1967
• Docket Number: No. 849,849
• Citation: White v. Mote, 270 N.C. 544, 155 S.E.2d 75 (N.C. 1967)
• Court: North Carolina Supreme Court
• Parties: James Allen WHITE v. Nelson MOTE and Town of Siler City.

Page 75

155 S.E.2d 75

270 N.C. 544

James Allen WHITE v. Nelson MOTE and Town of Siler City.

No. 849.

Supreme Court of North Carolina.

June 20, 1967.

Andrews & Stone, Siler City, for plaintiff.

T. F. Baldwin, City Atty., and Miller, Beck & O'Briant, Asheboro, for defendants.

BRANCH, Justice.

Defendants contend the trial court erred in overruling their motions for nonsuit when plaintiff rested and at the close of all the evidence. In support of this contention defendants argue: (1) That there was not sufficient evidence of actionable negligence to justify submitting the issue to the jury, and (2) plaintiff was guilty of contributory negligence as a matter of law. Defendants further contend the action was barred in that defendant Town of Siler City had not waived its immunity from tort liability while performing a governmental function.

Plaintiff alleged defendants were negligent in that:

'(a) They failed to display adequate warnings, signs or indications for motorists on said street of the hazardous conditions which they knew or should have known would be created by their spraying operations.

(b) They failed to display a rear flashing light or provide any signal whatsoever to approaching rear traffic while knowing that the fog which was being emitted was impenetrable, blinding, and generally hazardous.

(c) They failed to exercise that degree of care in the operation of said vehicle required of a reasonably prudent person under the circumstances then and there existing.

(d) They failed to exhibit a red light plainly visible under normal atmospheric conditions from a distance of five hundred feet to the rear of such vehicle, as required by North Carolina General Statutes 20--129(d).

(e) They negligently failed to equip said truck with two light reflectors, one on each side, as required by North Carolina General Statute 20--129.1.'

Considering the evidence in support of allegations (a), (b) and (c), we find this Court considered a similar situation in the case of Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695, where the municipality operated a fogging machine on its streets after sunset without warning or signals except for the lights on the vehicle and the noise of the operation, and a vehicle approached from its rear, ran into the fog, turned to its left of the highway, sideswiping a vehicle standing on the shoulder, and then colliding with another vehicle traveling in the opposite direction, which was also driving in the fog. Holding that the evidence was sufficient to be submitted to the jury on the question of negligence and proximate cause as to the municipality and its employees, this Court, speaking through Parker, J. (now C.J.) stated:

'Considering the evidence in the light most favorable to plaintiff (as we are required to do in passing on a motion for judgment of nonsuit, Bridges v. Graham, 246 N.C. 371, 98 S.E.2d 492), it is susceptible of a legitimate and fair inference by a jury that had it not been for the chemical fog or smoke created on the highway after sunset by the Town of Plymouth and its employees Basnight and Barnes, who were acting within the course of their employment, totally or materially obscuring the vision of the traveling public at the time and place and interfering with the rights of the traveling public by creating a dangerous condition, with no warning or signals to the traveling public of such condition, except such as appeared from the truck and fogging machine and fog and its noise in operation, the head-on collision between the trucks of Daniel and Manning, in which plaintiff was injured, might not have occurred, and that under all the surrounding facts and circumstances the Town of Plymouth, Basnight and Barnes could have reasonably foreseen that some injury or harm would probably result from the chemical fog or smoke on the highway.'

Here, plaintiff's evidence allows legitimate inferences which might be drawn therefrom by the jury tending to show that had it not been for the chemical fog created by defendants after sunset, materially obscuring the vision of plaintiff and interfering with his right and the right of the traveling public by creating a dangerous condition, without warnings or signals to warn the public of such condition, except such as appeared from the truck, fog and fogging machine and its noise of operation, the collision which caused plaintiff's injuries and property damage might not have occurred, and under the circumstances defendants could or should have reasonably foreseen that some injury or harm would probably result from the chemical fog or smoke on the highway. Further, considering the evidence in the light most favorable to plaintiff, as we are required to do in passing on a motion for nonsuit, Moore v. Town of Plymouth, supra, there is sufficient evidence for the jury to find that the defendant Town of Siler City failed to equip its truck with two reflectors on the rear, one at each side, in violation of G.S. § 20--129.1, and that defendant Town failed to equip its truck with a rear light of a type which has been approved by the Commissioner of Motor Vehicles, and which exhibits a red light plainly visible under normal atmospheric conditions from a distance of 500 feet to the rear of such vehicle, in violation of G.S. § 20--129(d).

It is stated in Scarborough v. Ingram, 256 N.C. 87, 122 S.E.2d 798: 'The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. §§ 20--129 and 129.1) were enacted in the interest of public safety. * * * A violation of these statutes constitutes negligence as a matter of law. Bridges v. Jackson, 255 N.C. 333, (121 S.E.2d 542); Lyday v. Southern R. Co., 253 N.C. 687, 117 S.E.2d 778.'

We must agree with the trial judge that there was sufficient evidence of actionable negligence on the part of defendants to jusify submitting the issue of negligence to the jury.

The more troublesome question is whether plaintiff was guilty of contributory negligence as a matter of law. Defendants so contend on the grounds that (a) plaintiff operated his automobile at a speed greater than was reasonable under existing conditions, (b) he followed defendants' vehicle too closely, and (c) he failed to keep a proper lookout and failed to exercise ordinary care.

There is not sufficient evidence of excessive speed to show contributory negligence as a matter of law. Defendants cannot rely on plaintiff's statement that he was going '35 to 40 miles per hour' to sustain their contention that he was guilty of contributory negligence as a matter of law, as the evidence shows this was in a residential-business area, and, taking the statement in the light most favorable to plaintiff, we must take the spped to be the lawful 35 miles per hour in a residential area. Further, the physical facts do not establish clearly that no other conclusion might be drawn except a conclusion of excessive speed. Plaintiff testified he did not have time to apply brakes or to slow down between the time he saw the fog and the time he collided with defendants' truck. The impact at a speed of 35 miles per hour reasonably could have been sufficient to bend the wheel of the truck and loosen the equipment which was described as being 'relatively permanently affixed to the truck.' The driver testified that after the collision 'the truck was running full throttle a good distance down the road before I regained control of it.' Thus, the driver's testimony would explain the distance the truck traveled and the fact that the equipment was some distance from the place where the truck was stopped.

"A nonsuit on the ground of contributory negligence will be granted only when the plaintiff's evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom.' Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19.

The evidence presents diverse inferences as to excessive speed on the part of plaintiff, and, on this point, a question of fact is presented for the jury.

Defendants contend the fact that plaintiff was the following driver involved in a rearend collision affords sufficient evidence to make him guilty of contributory negligence as a matter of law. To support this contention defendants cite McKinnon v. Howard Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Morris v. Jenrette Transportation Co., 235 N.C. 568, 70 S.E.2d 845; Smith v. Goldsboro Iron & Metal Co., 257 N.C. 143, 125 S.E.2d 377. Both the McKinnon and Morris cases were decided prior to the amendment to G.S. § 20--141(e) by the 1953 General Assembly, which added the proviso: 'that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. § 20--141(b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the...