53 N.C. App. 171 | N.C. Ct. App. | 1981
Did the trial court err in instructing the jury on the issue of defendant’s negligence in violating G.S. 20-161(a) by parking or leaving standing the motor vehicle on the paved portion of the highway? In determining this issue, it is significant that the uncontradicted evidence disclosed that the vehicle operated by defendant Linn Jones stopped at night in the 12-foot wide outside traffic lane of a four-lane two-way highway. The highway shoulder was 10 feet wide, with a 4-foot paved buffer and 6-foot grassy area. The motor of his vehicle stopped while moving downhill, and several times he put in the clutch and tried down-shifting in other gears in an effort to start the motor. Plaintiff offered evidence, denied by defendant, that it was foggy in the area where the collision occurred.
G.S. 20-161(a) provides as follows:
“No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or main-traveled portion of any highway or highway bridge outside municipal corporate limits unless the vehicle is disabled to such an extent that it is impossible to avoid stopping and temporarily leaving the vehicle upon the paved or main-traveled portion of the highway or highway bridge.”
Defendant takes the position that there was no prejudice to plaintiff because G.S. 20-161(a) was not applicable in that defendant did not “park or leave standing” his vehicle within the meaning of the statute. Defendant testified that when his vehicle stopped he got out, turned the wheels to the right, began pushing the vehicle toward the shoulder, and he felt the right front wheel go off the road. Plaintiff testified that the pickup was in the mid-
In many cases the courts of this State have interpreted the terms “park” or “leave standing” as used in G.S. 20461(a) as meaning something more than a mere temporary stop on the road for a necessary purpose. See 2 Strong’s N.C. Index 3d Automobiles § 11 (1976) and cases cited. Whether the stop, though temporary, was for a necessary purpose is a factor to be considered in determining a violation of G.S. 20461(a). And in several cases where the stop on the highway was the result of mechanical trouble or a flat tire it was held that the statute was violated if the operator had the opportunity and sufficient area to park off the highway on the shoulder. Sharpe v. Hanline, 265 N.C. 502, 144 S.E. 2d 574 (1965); Melton v. Crotts, 257 N.C. 121, 125 S.E. 2d 396 (1962). 2 Strong’s N.C. Index 3d Automobiles § 11.5.
This evidence was sufficient to require the trial judge, in applying the law to the evidence as required by G.S. 1-180, to charge on the violation of G.S. 20461(a) in instructing on the first issue, the negligence of the defendant. The evidence tended to show that defendant Linn Jones had the opportunity to drive the disabled vehicle to a position of safety on the shoulder of the highway.
In instructing the jury the trial court read G.S. 20461(a), added that a violation of the statute was negligence within itself, stated that defendant contended the vehicle stopped suddenly and it was impossible to avoid stopping on the paved portion of the highway, and then concluded: “So if you find that he violated that and that it was not impossible to avoid stopping and if you find that that was one of the proximate causes of the accident, it would be your duty to answer the first issue ‘yes’, in favor of the plaintiff.” No contention of the plaintiff was stated.
Whether the disablement of defendant’s vehicle justified him in stopping in the middle of the paved traffic lane was a question for the jury under proper instructions from the court, but the instruction of the court did not properly explain G.S. 20461(a) and apply its provisions to the evidence.
The burden was on the plaintiff to prove that defendant violated the statute. If defendant was to escape the consequences
In Melton, the court held that whether the puncture and flat tire at a point where the operator of a motor vehicle could not get off the highway for several hundred feet were sufficient to warrant him in stopping to change tires, leaving a part of his vehicle on the paved part of the highway, was a question for the jury. In Sharpe v. Hanline, 265 N.C. 502, 504, 144 S.E. 2d 574, 576 (1965), defendant’s vehicle was parked about 10 inches on the paved portion of a four-lane highway with a shoulder 15 to 18 feet wide. The court stated: “In our opinion, the provisions of G.S. 20-161 require that no part of a parked vehicle be left protruding into the traveled portion of the highway when there is ample room and it is practicable to park the entire vehicle off the traveled portion of the highway.”
The trial court should have instructed the jury that plaintiff had the burden of proving that defendant violated G.S. 20461(a) by parking or leaving standing his vehicle on the paved portion of the highway when he had the opportunity to park the vehicle on the shoulder of the highway, and that the burden was on the defendant to prove that he was excused from such parking because it was not reasonably practical under the circumstances to avoid stopping on the paved portion of the highway. The failure to so charge was error which was prejudicial to the plaintiff.
The plaintiff also assigns as error the failure of the trial court to instruct the jury on the doctrine of sudden emergency, though requested by plaintiff. The doctrine was recently stated in Foy v. Bremson, 286 N.C. 108, 116-17, 209 S.E. 2d 439, 444 (1974) as follows:
“An automobile driver who, by the negligence of another and not by his own negligence, is suddenly placed in an*178 emergency and compelled to act instantly to avoid a collision or injury, is not guilty of negligence if he makes such a choice as a person of ordinary prudence placed in such a position might make, even though he made neither the wisest choice nor the one that would have been required in the exercise of ordinary care except for the emergency.”
The plaintiff testified that he saw defendant’s vehicle in his traffic lane when he was four car-lengths away, that he did not pull onto the left lane because he was afraid that he would be hit by a tractor-trailer behind him in that lane, that he probably could have pulled to the right but he would have been on a narrow grassy area and a guardrail was there. This testimony and the other circumstances, including evidence that the shoulder was 10 feet wide and that there was fog in the area, make the doctrine of sudden emergency applicable, and the court erred in not charging on the doctrine as requested by the plaintiff.
These errors were prejudicial to the plaintiff in the determination of the issues submitted to the jury on both plaintiffs claim and defendant’s counterclaim.
The judgment is reversed and we order a
New trial.
