Winfield v. Smith

• Decision Date: 11 May 1949
• Docket Number: 457
• Citation: 53 S.E.2d 251,230 N.C. 392
• Parties: WINFIELD v. SMITH et al.
• Court: North Carolina Supreme Court

53 S.E.2d 251

230 N.C. 392

WINFIELD v. SMITH et al.

No. 457

Supreme Court of North Carolina

May 11, 1949

This was an action to recover damages for personal injury sustained as result of collision between an automobile plaintiff was driving and a truck of defendant Colonial Stores, Inc., being driven by defendant Smith. It was alleged that plaintiff's injury was caused by the negligence of defendant Smith who was at the time acting in the scope of his employment by the corporate defendant.

The collision occurred about 6:10 a. m., June 18, 1947, on State Highway 70, six miles west of Smithfield. Plaintiff was driving a Chevrolet passenger automobile in an easterly direction and defendants' motor tractor-trailer truck was being operated in the opposite direction. At the locality of the collision the road was straight, though there was a curve west of this point 250 or 300 feet distant. The road was surfaced with asphalt pavement 18 feet wide with dirt shoulders 4 1/2 feet wide on each side. At the time of the collision the scene was enveloped in a heavy fog, denser near the ground, and the surface of the asphalt was damp due to moisture condensed from the fog.

The plaintiff testified his automobile was in good condition recently inspected, and brakes adjusted, and that he was driving at speed of 30 to 35 miles per hour on his right side of the road with his parking or fog lights turned on. Due to the fog, visibility was reduced to 100 to 125 feet. After he came around the curve he saw at a distance of 100 feet away the defendant's truck approaching at a speed of 35 to 45 miles per hour, and in the act of attempting to pass the automobile of T. H. Underwood proceeding in same direction (west), so that the truck occupied the south or plaintiff's right-hand lane of the highway. The front of the truck was just even with the front of the Underwood car blocking the road. Confronted with this emergency plaintiff immediately applied his brakes, and his automobile continued in same direction about 6 feet and then skidded slightly to the left. In the meantime the driver of defendant's truck apparently becoming aware of plaintiff's automobile at about the same time had turned to his right, and Underwood also had quickly turned to his right off the road and stopped. The tractor portion of defendant's vehicle had crossed the center line of the highway to its right side, leaving the trailer still on the left or southern traffic lane, at the instant plaintiff's automobile collided with defendant's truck, the left front of plaintiff's automobile striking the left side of defendant's tractor or between tractor and trailer. Plaintiff sustained serious injury.

Plaintiff testified there were lights on the Underwood car, but he saw none on the truck; that due to the fog he could see only 100 to 125 feet in front and for that reason was driving carefully at a moderate rate of speed; that due to the unchecked speed of the truck as the vehicles approached each other he calculated only a brief space of time elapsed from the instant he saw the truck loom out of the fog 100 feet in front of him until the impact--a 'split second' as he termed it; that he had no reason to anticipate the approach of a truck traveling on his right or southern side of the highway; that the truck approached so quickly and the collision so imminent he could not turn his automobile to the right and due to the fog he could not see off on the shoulder or the ditch, and that he applied his brakes and held his course. He testified he did not at any time turn his automobile to the left side of the road; that the marks on the pavement showed his rear wheels skidded and the left front wheel was 19 inches over the center line; that if he had not collided with the front portion of the tractor he would have struck the trailer which was in plaintiff's lane of traffic. He offered evidence to show that defendant's tractor-trailer was 40 feet long, 8 feet wide and the trailer 12 feet high. He testified, 'it was split second timing in there from the time I saw this truck. When the car started skidding I had my hands on the wheel. It might have been that the brake on the left wheel applied a little harder than on the right, and that pulled the car that way. I guess I could have turned to my right if I had enough time; I don't know about that. Evidently I didn't have enough time to turn it back in the split second of time I had. The car skidded. * * * When I threw the brakes, the minute the impulse was made to put the brakes on, the car skidded. ' He testified if he had turned into the ditch it might have been much worse--you couldn't see. ' The defendant Smith, driver of defendant's truck testified that plaintiff applied his brakes and skidded over to his left side of the road, and that he saw the marks where he skidded. It was also in evidence that Smith said when he was abreast the Underwood car he saw the lights on plaintiff's automobile as he came around the curve; that he himself was traveling 35 to 40 miles per hour, and when he saw plaintiff's car he 'speeded up a little.' Underwood testified that at the time of the collision the truck had slowed up and was gradually coming to a stop. The patrolman who was offered as a witness by the defendants testified the only tire mark left by the truck was a slight dragging at the point of impact.

The defendants offered evidence tending to show that plaintiff's automobile struck the truck 2 feet over the center line; that the marks of plaintiff's tires gradually veered to his left; that from the point they started to the point of impact was 90 feet; that skid marks were straight down the highway on his right side for approximately 12 to 15 feet; then it was a sidewise skid leading to point of impact with all four tires making an impression; that at the beginning it was not sidewise, but as it got to about the center of the road it began sidewise sliding off toward the side. 'The sidewise marks went in the neighborhood of 75 or 78 feet before the point of impact'; that at the time of collision the tractor was entirely on its right side of the road, and only the rear end of the trailer was in the left or southern lane of traffic, occupying some 4 or 5 feet of that lane, and that there was room for an automobile to pass by using a portion of the shoulder. Defendant Smith testified he could see 300 feet. Underwood testified he could see only 100 to 125 feet, that it was very foggy making it difficult to drive. He said while there was room for a car to have passed on the shoulder on the right, if the driver 'could have seen where he was going. The fog was keeping him from seeing. I couldn't see. * * * I got off the highway. It was quick work.' He said if the plaintiff had kept straight on down the highway he would have hit the trailer. Plaintiff testified: 'I skidded nothing like as much as 90 feet. I didn't travel that far between the time I saw the car and this happened. From the time I applied my brakes and went 3 or 4 or 5 feet straight and then started skidding to the left, I won't say it was over 10 feet altogether. The whole business wasn't over 10 feet. I didn't see a skid mark there approximately 90 feet.' Defendant Smith, the driver of the truck, did not testify to the rate to speed of plaintiff's automobile other than to call it 'a pretty good rate of speed.'

Defendants' motion for judgment of nonsuit was denied, and their prayers for peremptory instructions were refused. The jury answered the issues as to negligence and contributory negligence in favor of the plaintiff and awarded damages in sum of $4000. From judgment on the verdict defendants appealed.

J. M. Broughton and C. Woodrow Teague, Raleigh, for plaintiff-appellee.

Ehringhaus & Ehringhaus, Raleigh, for defendants-appellants.

DEVIN, Justice.

The question chiefly debated on the defendants' appeal in this Court was the correctness of the ruling below denying the defendants' motion for judgment of nonsuit. While not conceding evidence of actionable negligence on the part of defendants, it was urged that from the plaintiff's evidence it necessarily followed as a matter of law that he was chargeable with contributory negligence, barring recovery.

Keeping in mind the established rule that on the motion for nonsuit the evidence tending to support the plaintiff's position must be considered in the light most favorable for him, and that he is entitled to the benefit of every reasonable inference to be drawn therefrom, Nash v. Royster, 189 N.C. 408, 127 S.E. 356, we think there was evidence of negligence on the part of the driver of defendants' truck, in that he drove on his left side of the road in attempting to pass another motor vehicle proceeding in the same direction at a time when he was within 300 feet of a curve, his vision obscured by a heavy fog, at a speed of 35 to 40 miles per hour, and meeting an oncoming automobile traveling in the lane of traffic into which he had thus driven his truck. Plaintiff's evidence would seem to indicate not only failure on defendants' part to observe the rule of the prudent man under the circumstances, but also to show violation of several provisions of the statutes regulating the operation of motor vehicles on the highway. G.S. ss 20-141 (c), 20-148, 20-150. Accordingly evidence of such improper and unlawful conduct, proximately resulting in injury to the plaintiff, warranted submission to the jury of the issue of defendants' negligence. Joyner v. Dail, 210 N.C. 663, 188 S.E. 209; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740.

The defendants both by their motion to nonsuit and by prayers for peremptory instructions to the jury present the question...