Powers v. S. Sternberg & Co.
195 S.E. 88
N.C.
1938
Check Treatment
Stacy, C. J.,

after stating the facts: The case is controlled by the decision in Smith v. Sink, 211 N. C., 725, 192 S. E., 108, which was rendered after the trial of the present cause in the Superior Court.

Even if it be conceded that defendant’s truck was negligently parked on the side of the road, Smithwick v. Pine Co., 200 N. C., 519, 157 S. E., 612; Pender v. Trucking Co., 206 N. C., 266, 173 S. E., 336, which may be doubted on the facts revealed by the record, Stallings v. Transport Co., 210 N. C., 201, 185 S. E., 643, still it would seem that the active negligence of the driver of the Bedenbaugh car was the real, efficient cause of plaintiff’s intestate’s death. McNair v. Kilmer Co., 210 N. C., 65, 185 S. E., 481; Beach v. Patton, 208 N. C., 134, 179 S. E., 446; Haney v. Lincolnton, 207 N. C., 282, 176 S. E., 573; Burke v. Coach Co., 198 N. C., 8, 150 S. E., 636; Hughes v. Luther, 189 N. C., 841, 128 S. E., 145.

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. Baker v. R. R., 205 N. C., 329, 171 S. E., 342; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555; Herman v. R. R., 197 N. C., 718, 150 S. E., 361.

Nor is it material whether Wallis flagged Bedenbaugh. Every appearance indicated that he was running into a zone of danger which he *44 must bave seen. Burke v. Coach Co., supra. Others saw it, if be did not. Moreover, be was familiar witb tbe icy condition of tbe road, having passed over it only a few hours before. Baker v. R. R., supra; Haney v. Lincolnlon, supra. He says himself that be could bave stopped but for tbe ice.

Tbe parking of tbe truck, if a remote cause, was not tbe proximate cause of tbe injury. Craver v. Cotton Mills, 196 N. C., 330, 145 S. E., 570. Tbe conduct of Wallis would bave produced no damage but for tbe active intervening negligence of Bedenbaugh. This exculpates tbe defendants. George v. R. R., 207 N. C., 457, 177 S. E., 324; Holt v. R. R., 201 N. C., 638, 161 S. E., 76.

Speaking to tbe applicable principle in Kline v. Moyer, 325 Pa., 357, 191 A., 43, 111 A. L. R., 406, tbe Pennsylvania Supreme Court formulated tbe following as a practicable and workable statement of tbe rule: “Where a second actor has become aware of tbe existence of a potential danger created by tbe negligence of an original tort-feasor, and thereafter, by an independent act of negligence, brings about an accident, tbe first tort-feasor is relieved of liability, because tbe condition created by him was merely a circumstance of tbe accident and not its proximate cause. Where, however, tbe second actor does not become apprised of such danger until bis own negligence, added to that of tbe existing perilous condition, has made tbe accident inevitable, tbe negligent acts of tbe two tort-feasors are contributing causes and proximate factors in tbe happening of tbe accident and impose liability upon both of tbe guilty parties.”

Tested by this criterion, it would seem that plaintiff’s intestate’s death, which was a most unfortunate occurrence, by correct interpretation of tbe record, is properly attributable to tbe heedless conduct of tbe driver of tbe car in which she was riding. Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; 22 R. C. L., 132. His was not tbe “normal response” of a reasonably prudent man to tbe circumstances as they appeared, but rather tbe “extraordinarily negligent” act of a careless driver — in tbe language of tbe Restatement of Torts, sec. 447.

It is conceded that tbe instant record, like that of Quinn v. R. R., post, 48, presents a border-line case in which tbe rule is difficult of application. R. R. v. Kellogg, 94 U. S., 469.

Tbe motion of defendants for judgment of nonsuit should bave been allowed.

Reversed.