151 S.E. 197 | N.C. | 1930
The evidence tended to show that on the early morning of 26 November, 1927, at about 4 o'clock in the morning, the plaintiff was driving his automobile between Charlotte and Gastonia on Highway No. 20, which is an improved highway. About ten miles from Charlotte the plaintiff, while driving on the proper side of the highway, at a speed of about twenty-five miles an hour, collided with a truck owned by the defendant, which was parked on the highway without a tail light. The body of the truck stood about fifty inches from the ground. The tail gate of the truck was projecting at an angle of about 45 degrees, and there was no light on the tail gate.
Plaintiff testified that prior to the collision he was keeping a "lookout up to the time the collision occurred." Plaintiff further testified that the lights on his car were adjusted in accordance with the requirements of the law of North Carolina.
There was further evidence that the plaintiff was going up grade when the collision occurred; that the pavement was dry, and that it was very dark. "The road was straight all the way up the hill" for at least 200 yards. The hard surface was about 22 feet wide at the point of the collision. Plaintiff testified: "I guess I was within five or ten feet of the truck before I saw it. If the truck was moving I could not tell you. When I hit it, it did not drag me one inch. I came to a dead stop as soon as I hit it. I ran my car up underneath the bottom of the truck." The truck was loaded with automobile tires and stood about twelve feet high, and was five or six feet wide.
The testimony further tended to show that plaintiff sustained property damage and serious personal injury.
Issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of plaintiff.
The verdict awarded damages in the sum of $3,757.00.
The defendant offered no evidence.
From judgment upon the verdict the defendant appealed. *195 The plaintiff was driving an automobile in the night time, up grade on a dry hard-surfaced road, with the lights on his car properly adjusted, and ran into an unlighted truck apparently parked on the hard surface on the right-hand side of the road as plaintiff was approaching. The bottom of the truck stood fifty inches from the ground, and the lights on plaintiff's car upon a level surface would have thrown a beam something like two hundred yards. There is no evidence as to how far the beam would have been thrown while traveling up grade.
The defendant was plainly guilty of negligence by reason of express violation of C. S., 2621 (77) and 2621 (94), and hence the determinative question at issue is whether the plaintiff was guilty of contributory negligence, barring recovery, as a matter of law.
The defendant relies upon Hughes v. Luther,
In the present case, the evidence tended to show that the plaintiff did not see the unlighted truck and had no notice of impending danger until it he was within five or ten feet thereof. The question is: Ought he to have seen, in the exercise of ordinary care for his own safety; or to state it differently, was his failure to see, under the circumstances, contributory negligence as a matter of law?
In the case of Harrison v. R. R.,
These cases from other jurisdictions are referred to, in order to show the existing difference in judicial opinion upon the subject.
However, in this State, the law with respect to nonsuit upon the ground of contributory negligence is well settled. The main difficulty consists in applying the settled rules of law to the facts of a given case. In Battlev. Cleave,
Applying this declaration of law to the facts disclosed in the present record, are there "opposing inferences permissible from plaintiff's proof"? The evidence for plaintiff tended to show that he was keeping a proper lookout but that he was traveling up grade at the time of the collision, and the lights of his automobile having been adjusted according *197 to law, threw the rays "down on the surface of the road." Hence the lights would not "pick up" the truck, the bottom of which was standing fifty inches from the ground.
We are of the opinion that "opposing inferences" are permissible from plaintiff's proof, and therefore the case was properly submitted to the jury.
No error.