Tyson v. . Ford
47 S.E.2d 251
N.C.
1948
Check Treatment
Stacy, C. J.

The question for decision is whether the evidence suffices to carry the cases to the jury in the face of the demurrers. The trial court answered in the negative, and we approve.

Conceding the negligence of the defendants, which is denied in the answer but made manifest on the record, the cases were made to turn in the court below on the contributory negligence of the driver of the Tyson car. Prom his own testimony, it would seem that he was clearly and unmistakably “out-running his headlights” at the time of the collision. Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Allen v. Bottling Co., 223 N. C., 118, 25 S. E. (2d), 388; Caulder v. Gresham, 224 N. C., 402, 30 S. E. (2d), 312. The tragic fact is, that when young Tyson first saw the truck he was too near it, at the speed he was going, to stop or to turn to the left before striking it. He so testifies. This certainly contributed to his misfortune, and was such conduct on his part as bars recovery to him and to his mother, the owner of the car. Penland v. Southern Ry. Co., ante, 528, 46 S. E. (2d), 303; McKinnon v. Motor Lines, ante, 132, 44 S. E. (2d), 735; Riggs v. Gulf Oil Corp., ante, 774.

It is true that the driver of the Tyson car was not bound to foresee or to anticipate that an unlighted truck would be left standing on the traveled portion of the highway ahead of him without flares or other signs of danger, but this did not relieve him of the necessity of keeping a proper lookout and proceeding as a reasonably prudent person under the circumstances. “While the plaintiff had the right to assume that *781 other motorists would not obstruct the highway unlawfully, and would show the statutory lights if they stopped, he could not for that reason omit any.of the care that the law demanded of him.” Steele v. Fuller, 104 Vt., 303, 158 Atl., 666.

The test of liability for negligence, primary or contributory, is the departure from the normal conduct of the reasonably prudent man, or the care and prevision which a reasonably prudent person would employ in the circumstances. The rule is constant, while the degree of care' which a reasonably prudent person is required to exercise varies with the exigencies of the occasion. Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 355. For this reason, no factual formula can be laid down, which will determine in every instance the person legally responsible for a rear-end collision on a highway at night between a standing vehicle- and one that is moving. “Practically every case must 'stand on its own bottom.’ ” Cole v. Koonce, 214 N. C., 188, 198 S. E., 637.

Curves and hills in the road are conditions a motorist is required to-take into consideration in regulating his speed “as may be necessary to-avoid colliding with any person, vehicle, or other conveyance.” G. S.,. 20-141, Subsec. 5 (c). “He must operate his automobile at night in such; manner and at such speed as will enable him to stop within the radius-of his lights,” if occasion should so require. Allen v. Bottling Co., supra.. The present ease, however, is not predicated on this circumstance alone:. Annotations: 44 A. L. R., 1403; 58 A. L. R., 1493; 87 A. L. R., 900. It is obvious that the driver of plaintiff’s car was inattentive to the duty required of him for his own safety and that of his companions when he rounded the curve and topped the hill at a high-rate of speed; and, “To tell the truth,” he says, “the first thing I knew was when I saw that truck up in front of me.” It is generally held for law that “a motorist who fails to exercise a degree of care commensurate with the surrounding hazards, and collides with an automobile standing without lights, will be precluded from recovery.” 5 Am. Jur., 748; Anno. 62 A. L. R., 970.

There are two lines of decisions in our Reports involving highway accidents which turn on the question of contributory negligence. Hayes v. Telegraph Co., 211 N. C., 192, 189 S. E., 499. In this, as in other matters where a line must be drawn, there will be cases very near each other on opposite sides. Indeed, the line of demarcation may be difficult to plot in some instances. While simple enough in statement, its application is the place of the rub. Sibbitt v. Transit Co., 220 N. C., 702, 18 S. E. (2d), 203. “A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence, and certain conduct of a plaintiff contributory negligence, and take away the question of negligence and contributory negligence from the jury.” Moseley v. R. R., 197 N. C., 628, 150 S. E., 184.

*782 Tbe first line, in which contributory negligence has been held as a matter of law to bar recovery, is represented, among others, by the following decisions: Weston v. R. R., supra; McKinnon v. Motor Lines, supra; Riggs v. Gulf Oil Corp., supra; Atkins v. Transportation Co., 224 N. C., 688, 32 S. E. (2d), 209; Austin v. Overton, 222 N. C., 89, 21 S. E. (2d), 887; Pike v. Seymour, 222 N. C., 42, 21 S. E. (2d), 884; Dillon v. Winston-Salem, 221 N. C., 512, 20 S. E. (2d), 845; Sibbitt v. Transit Co., supra; Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Lee v. R. R., 212 N. C., 340, 193 S. E., 395; Smith v. Sink, 211 N. C., 725, 192 S. E., 108.

The second line, in which contributory negligence has been held to be an issue of fact for the jury, is represented, among others, by the following decisions: Hobbs v. Drewer, 226 N. C., 146, 37 S. E. (2d), 121; Cummins v. Fruit Co., 225 N. C., 625, 36 S. E. (2d), 11; Page v. McLamb, 215 N. C., 789, 3 S. E. (2d), 275; Clarke v. Martin, 215 N. C., 405, 2 S. E. (2d), 10; Cole v. Koonce, supra; Exum v. Baumrind, 210 N. C., 650, 188 S. E., 200; Pender v. Trucking Co., 206 N. C., 266, 173 S. E., 336; Lambert v. Caronna, 206 N. C., 616, 175 S. E., 303; Williams v. Express Lines, 198 N. C., 193, 151 S. E., 197.

We think the facts of the instant case bring it within the first line of decisions as above designated. It is conceded, however, that very near it on the other'side of the fence is the last-cited case of Williams v. Express Lines.

Young Tyson’s negligence need not have been the sole proximate cause of the injury to bar recovery, for “contributory negligence” ex vi termini signifies contribution rather than independent or sole cause. Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to the injury as a proximate cause, or one of them. Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565; Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137. The plaintiff may not recover in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the result. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564.

A careful perusal of the record leaves us with the impression that the judgment of nonsuit should be sustained.

Affirmed.