Williams v. Frederickson Motor Express Lines Inc

Decision Date22 January 1930
Docket Number(No. 466.)
Citation151 S.E. 197
CourtNorth Carolina Supreme Court
PartiesWILLIAMS. v. FREDERICKSON MOTOR EXPRESS LINES, Inc.

Appeal from Superior Court, Mecklenburg County; Sink, Special Judge.

Action by J. H. Williams against the Frederickson Motor Express Lines, Inc. Judgment for plaintiff, and defendant appeals. No error.

The evidence tended to show that on the early morning of November 26, 1927, at about 4:00 o'clock in the morning, the plaintiff was driving his automobile between Charlotte and Gastonia on highway No. 20, which is an improved highway. About 10 miles from Charlotte, the plaintiff, while driving on the proper side of the highway, at a speed of about 25 miles an hour, collided with a truck owned by the defendant, which was parked on the highway without a tail-light. The body of the truck stood about 50 inches from the ground. The tailgate of the truck was projecting at an angle of about 45 degrees, and there was no light on the tailgate.

Plaintiff testified that prior to the collision he was keeping a "lookout up to the time the collision occurred." Plaintiff further testified that the lights on his car were adjusted in accordance with the requirements of the law of North Carolina.

There was further evidence that the plaintiff was going up grade when the collision occurred; that the pavement was dry; and that it was very dark. "The road was straight all the way up the hill" for at least 200 yards. The hard surface was about 22 feet wide at the point of the collision. Plaintiff testified: "I guess I was within five or ten feet of the truck before I saw it. If the truck was moving I could not tell you. When I hit it, it did not drag me one inch. I came to a dead stop as soon as I hit it. I ran my car up underneath the bottom of the truck." The truck was loaded with automobile tires and stood about 12 feet high, and was 5 or 6 feet wide.

The testimony further tended to show that plaintiff sustained property damage and serious personal injury.

Issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of plaintiff.

The verdict awarded damages in the sum of $3,757.

The defendant offered no evidence.

Thaddeus A. Adams and John M. Robinson, both of Charlotte, for appellant.

D. B. Smith and Stewart, McRae & Bobbitt, all of Charlotte, for appellee.

BROGDEN, J. The plaintiff was driving an automobile in the night time, up grade on a dry hard-surfaced road with the lights on his car properly adjusted, and ran into an un-lighted truck apparently parked on the hardsurface on the right-hand side of the road as plaintiff was approaching. The bottom of the truck stood 50 inches from the ground, and the lights on plaintiff's car upon a level surface would have thrown a beam something like 200 yards. There is no evidence as to how far the beam would have been thrown while traveling up grade.

The defendant was plainly guilty of negligence by reason of express violation of Code 1927, §§ 2621 (77) and 2621 (94), and hence the determinative question at issue is whether the plaintiff was guilty of contributory negligence, barring recovery, as a matter of law.

The defendant relies upon Hughes v. Luther, 189 N. C. 841, 128 S. E. 145, and Weston v. R. R., 194 N. C. 210, 139 S. E. 237, 239. Neither of these cases is applicable to the facts disclosed in the present record. In the Hughes Case the plaintiff saw the unlighted truck parked on the highway 75 yards away, and was therefore fully apprised of the danger, and yet took no precaution for his own safety. In the Weston Case there was no evidence that the defendant was guilty of any negligence at all. Furthermore, the plaintiff in that case was fully apprised of the danger because he discovered in the rain and mist an object in front of him. Notwithstanding, "he made no effort to reduce his speed until it was too late."

In the present case, the evidence tended to show that the plaintiff did not see the unlighted truck and had no notice of impending danger until he was within 5 or 10 feet thereof. The question is: Ought he to have seen, in the exercise of ordinary care for his own safety; or to state it differently, was his failure to see, under the circumstances, contributory...

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