Williams v. Tucker, 235

• Decision Date: 10 April 1963
• Docket Number: No. 235,235
• Citation: 259 N.C. 214,130 S.E.2d 306
• Court: North Carolina Supreme Court
• Parties: P. C. WILLIAMS v. Louis James TUCKER. Mrs. Frankie Stewart WILLIAMS v. Louis James TUCKER.

Page 306

130 S.E.2d 306

259 N.C. 214

P. C. WILLIAMS v. Louis James TUCKER.

Mrs. Frankie Stewart WILLIAMS v. Louis James TUCKER.

No. 235

Supreme Court of North Carolina.

April 10, 1963

Ray Rankin, Charlotte, for plaintiffs-appellants.

Robinson, Jones & Hewson, Charlotte, for defendant-appellee.

MOORE, Justice.

The inquiry is whether the court erred in granting defendant's motion for nonsuit.

Plaintiffs' evidence, considered in the light most favorable to them, shows:

On the morning of 17 February 1962 feme plaintiff drove her husband's (male plaintiff's) station wagon eastwardly on Highway 27 to the Allen Station community to keep an appointment with a consmetologist. There was a general fog; 'it was very foggy; extremely dense; it was foggy all over.' She drove at a speed not exceeding 25 miles per hour; the parking lights were on. The beautician's shop was on the north side of the highway, and a wide gravel driveway led from the highway to the shop. In order to get to the shop it was necessary to turn left and cross the north lane of the highway. The highway was straight, the paved portion was 24 feet wide and the centerline was marked. Feme plaintiff reduced speed to 5 miles per hour and gave a left turn blinker light signal; she looked carefully forward for meeting traffic and saw neither a vehicle nor the lights of a vehicle approaching. On account of the fog the visibility was only 75 feet. She did not come to a complete stop. Seeing no approaching traffic, she turned left and increased speed 'a little bit to get across and in.' After her left wheel had gotten into the driveway, the right side of the station wagon was struck by the front of defendant's automobile. The station wagon was extensively damaged, and defendant's automobile came to rest 30 feet away in the center of the highway. Defendant was travelling at a speed of 50 miles per hour. Male plaintiff, who arrived on the scene a few minutes after the accident and talked to defendant, testified that 'he believed Mr. Tucker (defendant) stated in his hearing that he was driving on this occasion about 50 miles per hour.' The posted speed limit was 60 miles per hour. The accident occurred about 9:00 A. M.

Plaintiffs allege that the collision was proximately caused by the negligence of defendant in that he operated his car at a speed greater than was reasonable and prudent under the circumstances and failed to reduce speed on account of the foggy weather conditions, G.S. § 20-141(a), (c), failed to maintain a reasonable lookout, and failed to keep his car under proper control.

Defendant pleads that plaintiffs were contributorily negligent in that feme plaintiff made a left turn without keeping a reasonable lookout and without first ascertaining that the movement could be made in safety, G.S. § 20-154(a), failed to maintain proper control, and violated the reckless driving statute, G.S. § 20-140(a).

It has been held in extreme cases that where by reason of fog or other conditions visibility is practically nonexistent, motorists are under duty to refrain from entering the highway or to stop if already on the highway. 42 A.L.R.2d, Anno.: Automobiles-Atmospheric Conditions, § 5, p. 41. For cases in this jurisdiction involving almost such extremity of condition see: Moore v. Plymouth, 249 N.C. 423, 106 S.E.2d 695; Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254. But ordinarily a motorist is not negligent or contributorily negligent as a matter of law if he drives an automobile in foggy weather when visibility is poor. Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Clarke v. Martin, 215 N.C. 405, 2 S.E.2d 10; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; Meacham v. Southern R. R., 213 N.C. 609, 197 S.E. 189.

'Under the well-recognized general rule that a driver of a motor vehicle must exercise reasonable or ordinary care, the surrounding circumstances are important, and one of such circumstances is the existence of fog obscuring visibility. Therefore, it is said that the driver must exercise care commensurate or consistent with the situation.' 42 A.L.R.2d, Anno.: Automobiles--Atmospheric Conditions, § 4, p. 36. 'A motorist should exercise reasonable care in keeping a lookout commensurate with the increased danger occasioned by conditions obscuring his view.' Chesson v. Nello L. Teer Co., 236 N.C. 203, 207, 72 S.E.2d 407, 410. And this rule applies to both plaintiff and defendant. Bradham v. McLean Trucking Co., supra. "The precise degree or quantum of care properly exercisable by a motorist * * * under varying atmospheric conditions, such as fog, smoke, dust, and the like, is ordinarily a question for the jury. Whether the exercise by a driver of reasonable care required a complete stop, a slowing down, or any other precautions dictated by the standard of ordinary prudence, is generally within the province of the jury to decide, in the light of all the surrounding facts and circumstances.' 5A Am.Jur., Automobiles, § 1070.' Moore v. Plymouth, supra.

If, as plaintiffs' evidence tends to show, defendant was operating his...