dissenting.
I dissent. The trial judge granted summary judgment in favor of defendants Harze and Nu-Car Carriers, Inc. Defendant Allred’s motion for summary judgment was denied; however, that ruling was not before the Court of Appeals and has not been presented to this Court. The Court of Appeals affirmed the dismissal of plaintiffs action against Harze and Nu-Car Carriers, Inc.
The result reached by the Court of Appeals was correct, and I vote to affirm. The Court of Appeals held that the trial court ruled “that the negligence of Allred insulated the negligence of Harze and Nu-Car Carriers, Inc.”
In this case all of the defendants were negligent as a matter of law. Allred was negligent in operating her car while intoxicated. Harze and Nu-Car Carriers, Inc. were negligent in parking the truck in violation of N.C.G.S. 20-134. The question of whether Allred’s negligence insulated the negligence of Harze and Nu-Car Carriers, Inc. was proper for disposition in the summary judgment hearing. There was no genuine issue as to any material fact before the trial court. McNair v. Boyette, 282 N.C. 230, 192 S.E. 2d 457 (1972).
All the evidence shows that both plaintiff and her host driver, Allred, were intoxicated at the time of the collision. The majority, with understandable but undue restraint, states that the two women “drank some beer.” In my view of the record, a more accurate statement is that they were completely soused. The record shows:
State whether you [Allred] or Ronda Joy Williams King had consumed any alcoholic beverages or taken any druges [sic] or medication within eight (8) hours prior to said occurrence, the place where the same were obtained, and the nature and the amount thereof, and the time last quantity was ingested.
ANSWER: Yes, at Lounge; beer; we were both intoxicated. We had been together all evening.
* * * *
Q. Mrs. King, are you aware of the fact that Sandra Allred has filed in this case a statement under oath that both *120you and she were intoxicated at the time this accident occurred?
A. Do I know that she has said that?
Q. Yes.
A. Yes, sir.
Q. Do you agree that that’s true?
A. That we were both drinking?
Q. That you were both intoxicated?
A. Yes, sir.
* * * *
Sandra Hudson Allred, being first duly sworn, deposes and says:
. . . [T]his affiant and Ronda Williams (now Ronda Williams King) drank beer at the lounge and both of them had consumed beer together before they ever went to the lounge; that when they decided to leave the lounge to go back to their homes in High Point, they were both very intoxicated; that Ronda Williams could have spent the rest of the night at the lounge or arranged for other transportation to her home, but she walked to this affiant’s automobile and got into the passenger’s seat of the automobile on her own free will; that after she got in the automobile, she leaned back and closed her eyes, as if she were dozing or asleep; that from the time she got into the automobile until the time of the accident, she made no statement to me about the manner in which I was driving the automobile; at the time of the accident, I was under the influence of intoxicants and I did not see the truck in time to avoid colliding with it; on the other occasions Ronda and this affiant had left their homes in High Point and gone to Greensboro for the evening, where they consumed beer and got intoxicated, and this affiant drove the automobile back to their homes in High Point, and on those occasions, the plaintiff voluntarily got into the automobile and rode back to High Point with this affiant and on those occasions they did not have an accident. Just before *121the accident, this affiant was intoxicated to the extent that she was unable to operate an automobile in a careful and prudent manner or keep it under proper control.
All the evidence shows that not only was defendant Allred intoxicated while she was driving the car, she was intoxicated to such an extent that she could not operate the car in a careful and prudent manner. Allred was negligent as a matter of law. Watters v. Parrish, 252 N.C. 787, 115 S.E. 2d 1 (1960).
I find this case to be controlled by Powers v. Sternberg, 213 N.C. 41, 195 S.E. 88 (1938). In Powers, plaintiffs decedent was riding as a passenger in a car operated by one Bedenbaugh. The car collided with a truck negligently parked on the highway. There was ice on the highway and Bedenbaugh knew the road was slick. Bedenbaugh had consumed some alcoholic liquor. He struck the parked truck with such force that it was knocked several feet, his car was demolished and plaintiffs decedent instantly killed. This Court, through Chief Justice Stacy, held that the negligence of defendants in parking the truck on the highway was insulated by the active negligence of Bedenbaugh.
There are a few physical facts which speak louder than some of the witnesses. The force with which the Bedenbaugh car ran into the truck, with its attendant destruction and death, establishes the negligence of the driver of the car as the proximate cause of the injury. . . .
The parking of the truck, if a remote cause, was not the proximate cause of the injury. . . . The conduct of Wallis would have produced no damage but for the active intervening negligence of Bedenbaugh. This exculpates the defendants.
Id. at 43-44, 195 S.E. at 89 (citations omitted). See McNair v. Boyette, supra; Rowe v. Murphy, 250 N.C. 627, 109 S.E. 2d 474 (1959); Basnight v. Wilson, 245 N.C. 548, 96 S.E. 2d 699 (1957); Skinner v. Evans, 243 N.C. 760, 92 S.E. 2d 209 (1956); Loving v. Whitton, 241 N.C. 273, 84 S.E. 2d 919 (1954).
So here, as in Powers v. Sternberg, the physical facts establish the negligence of Allred as the sole proximate cause of *122plaintiffs injuries. Allred admitted that she “was under the influence of intoxicants and I did not see the truck in time to avoid colliding with it” and that “[j]ust before the accident, this affiant was intoxicated to the extent that she was unable to operate an automobile in a careful and prudent manner or keep it under proper control.”
The majority states that Harze “personally could have foreseen the negligence of the defendant Allred.” A person using the highway is not bound to anticipate that another will be negligent. He may assume until the last moment that others will obey the rules of the road and drive in a reasonably prudent manner. Loving v. Whitton, supra.
Although I do not embrace all the language of the Court of Appeals opinion, particularly its reference to what Allred could have seen if she had not been intoxicated, the correct result was reached. The negligence of Allred insulated the negligence of Harze and Nu-Car Carriers in leaving the truck parked on the highway. Powers v. Sternberg, supra. I vote to affirm the Court of Appeals.