HARRIS EXPRESS, Inc.
v.
JONES.
No. 526.
Supreme Court of North Carolina.
November 26, 1952.*304 Covington & Lobdell, Charlotte, for plaintiff-appellant.
Robert D. Potter, B. Irvin Boyle, Charlotte, for defendant-appellee.
WINBORNE, Justice.
Testing the evidence offered by plaintiff and so much of defendant's evidence as is favorable to plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, in this case, Rice v. City of Lumberton, 235 N.C. 227, 69 S.E. 2d 543, it may be fairly doubted that there is shown any evidence of actionable negligence on the part of defendant. Morris v. Jenrette Transport Co., 235 N.C. 568, 70 S.E.2d 845.
Here, as in the Morris case, the uncontradicted statement of defendant, offered in evidence by plaintiff through its witness, Patrolman Anthony, and explained by the testimony of defendant, refutes the theory of "a parking" of defendant's tractor-trailer at the place of the collision in question, within the meaning of the statute G.S. § 20-161(a), as amended by Chap. 1165 of 1951 Session Laws of North Carolina. (See discussion in the Morris case.)
Likewise as to permitting the tractor-trailer of defendant to be on the highway without lights. The factual situation here is so similar to that in the Morris case that what is said there in this respect is applicable and appropriate here.
But if it be conceded that defendant was negligent in some respect alleged in the complaint, it is manifest that the driver of plaintiff's tractor-trailer was negligent in the operation of it, and that such negligence was the proximate cause, or at least one of the proximate causes of the collision and property damage of which complaint is here made.
The case comes within and is controlled by the principles enunciated and applied in Weston v. Southern R. Co., 194 N.C. 210, 139 S.E. 237, the Morris case, supra, and the list of cases cited in the Morris case, 235 N.C. at pages 576-577, 70 S.E. 845, as well as in the case of Morgan v. Cook, N.C., 73 S.E.2d 296. Compare Hammet v. Miller, 227 N.C. 10, 40 S.E.2d 480, and Clark v. Lambreth, 235 N.C. 578, 70 S.E.2d 828.
Hence the judgment below is
Affirmed.
PARKER, J., took no part in the consideration or decision of this case.
ERVIN, Justice (dissenting).
When I construe the evidence in the light most favorable to the plaintiff, I reach the deliberate conclusion that it makes out this case:
The defendant knowingly permitted the rear end of the semi-trailer drawn by his disabled road tractor to project onto the main traveled part of a congested highway on a dark and cloudy night. While so doing, he violated G.S. § 20-134 by failing to exhibit a red tail light at the rear of his semi-trailer, and G.S. § 20-161 by failing to display red flares to warn approaching motorists of the impending peril. The plaintiff's northbound motor vehicle came upon the scene from the rear in the charge of a driver who was keeping a proper lookout and proceeding at a reasonable speed. As the plaintiff's motor vehicle neared the rear of the defendant's stationary and unlighted semi-trailer, it met a motor vehicle which was moving along the highway in the opposite direction. This southbound motor vehicle projected glaring headlights into the face of the plaintiff's driver, blinding him and compelling him to fix his gaze on the painted line marking the inner edge of his traffic lane in order to avoid collision with the approaching vehicle. As a consequence of these events, the plaintiff's driver was unable to see the stationary and unlighted semi-trailer of the defendant in time to avoid striking it.
For this reason, I am of the opinion that the question of whether the defendant was *305 guilty of actionable negligence and the question of whether the plaintiff's driver was guilty of contributory negligence were for the jury.
I am unable to give my assent to the legal premise which necessarily underlies the decision of the majoritythat the law imposes upon the nocturnal motorist the absolute and unvarying duty not to move a motor vehicle along a highway at all unless he has a complete knowledge of all obstructions lying ahead, no matter how unexpectable or unperceivable those obstructions may be. This legal premise requires of the nocturnal motorist an infallibility not possessed by any man who ever traveled over the earth's surface by motor vehicle or otherwise.
JOHNSON, J., concurs in dissent.