Opinion
Filed 19 November, 1952.
Automobiles 8d, 18h (3) — Evidence held to disclose contributory negligence as matter of law on part of motorist hitting tractor across his lane of travel. Plaintiff driver's evidence tended to show that as he approached the scene on a three lane highway he was blinded by the lights of a tractor in the middle lane some 1,400 feet away, that notwithstanding he continued in his right-hand lane at 30 or 35 miles per hour and did not see the trailer which was across his lane of travel until he was within twelve or fifteen feet thereof, that he immediately put on his brakes but was unable to stop before his windshield crashed into the side of the trailer. Held: Plaintiff's evidence discloses contributory negligence barring recovery as a matter of law.
APPEAL by plaintiff from Sharp, Special Judge, June Term, 1952, of RANDOLPH.
Ottway Burton for plaintiff, appellant.
Smith Walker for defendants, appellees.
ERVIN and JOHNSON, JJ., dissent.
VALENTINE, J., dissenting.
Civil action to recover for damages to plaintiff's automobile and for personal injuries sustained on Highway No. 220 in Randolph County, when he ran his automobile into the side of a tank tractor-trailer owned by the Southern Oil Transportation Company, and operated at the time by an employee, Ernest Eli Cook. It is alleged the damages were caused by the negligence or default of the defendants.
The plaintiff who at the time of the collision lived in North Asheboro and was employed as a foreman in the mill of Carthage Fabrics in Carthage, testified as follows: "On December 21, 1950 I had started to work. I work on the third shift, night-time. I have to be there quarter of twelve. Lewis Cockman, my brother-in-law, was with me. He worked down there with me at the time. I left the house ten minutes 'til 10; . . . The overpass, 49 crosses 220, which is about 2800 feet from where the wreck happened; there is a rise in the road; after I went over the high place in the road, 220, I saw bright lights, two bright lights up in the middle lane. There are three lanes in 220. They are marked; broken lines, white lines, all the way through. The center lane is reserved for lefthand turn and through traffic. There are two outside lanes. The traffic with lights were passing on the right coming north. I dimmed my lights on dim three or four times. This light was sitting in the center lane; meeting me; it was awful bright; almost like a locomotive. I tapped my brakes a few times, slowed down pretty slow, to see what he was doing. He was in the center lane, and two headlights. . . . As I got up even with the truck, the truck was sitting up, I didn't see anything at all. I tapped the gas to go on through, . . . I got up 12 or 15 feet of the trailer I saw a bulk. It was a grayish color. . . . I hit the brakes for all it was worth; ran up under there, hit in the center of the windshield, knocked the glass out, crashed glass on the side. . . . The width of the asphalt top of 220 is 35 feet. The tank was way over the entire righthand lane, covered the shoulder and all. The tractor part was up in the middle lane, headed north. . . . After I passed the bright light, my light being on dim, it seemed it was shining under the pass (tank), and the lights on the trailer, . . . There could have been lights on the back and front, but they were shining the other way, and the lights on the tractor, clearance lights, were shining back this way. . . . I was 12 or 15 feet from the tank when I was first able to see it. The tanker is about four and a half feet from the ground. My automobile went underneath it. It hit the windshield, right in the center. I applied my brakes after I saw the tanker. I skidded my wheels five or six feet. The collision busted the body of my automobile all to pieces on it; all the glass, knocked it out, windshield all out. There were no flares or lights stationed anywhere . . . to indicate that this tank was across the road. Not anything at all. . . . I saw these lights in the center lane for about 1400 feet. They didn't move. The traffic was heavy in the other lane. . . . I called on him three or four times with the dimmers trying to make him lower his lights. I wanted him to do that so I could see. They blinded me until I got by the glare; 12 or 15 feet before I saw it. I was just as good as blinded from the time I first saw the lights until I got 12 or 15 feet. No, I was not as good as blinded for 1385 feet. Not that much. Yes, I want the jury to believe that I was blinded until I got within 15 feet of the trailer part of the truck. . . . I was going around 35 when I collided with the truck. When I first saw the headlight I tapped my brakes three or four times, slowed down 'til I got by the flare of the truck, the lights, and it looked clear to me 'til I looked under the trailer. I don't know how many miles per hour I slowed down from the time I first observed the headlights until I had the collision. I had slowed down 30 or maybe 25. I will say I didn't hit my brakes hard until 12 or 15 feet, of him . . . I knew the oil tanks were down in that part of town. I didn't know they used the highway for a trucking turn. I knew several other oil companies have terminals there. I know that is a 35 mile per hour speed zone. . . . There wasn't anything I could see in the way; the truck was making a left turn. The road was open as far as I could see."
Lewis Cockman testified, "We were going down 220, and after we passed the overpass, a truck was sitting in the middle lane. We were making speed in the neighborhood of 35 miles per hour. I can't say definitely that we at any time exceeded 35 miles per hour. . . . for a distance of 1400 feet I would say that the bright lights were staring me right in the face; it didn't exactly blind me; you couldn't see anything between you and that (truck). . . . the tanker was across the path. The bright lights on the truck prevented him from seeing the truck as he cut his lights from dim to bright. You still couldn't see the tanker. He drove 1400 feet with that condition. He never brought his car to a stop. He never reduced his speed more than 10 miles per hour. When he got within 12 feet of the tanker he jammed on his brakes. He didn't have time to stop. . . . I was watching these lights all the time in the center lane. They never moved. I thought he would pull up into another lane. I didn't know he was backing up."
Both occupants of the plaintiff's car received painful and serious injuries, and the plaintiff's car was damaged to the extent of approximately $900.00.
Defendants moved for judgment as of nonsuit at the close of plaintiff's evidence. The motion was overruled. It was renewed at the close of all the evidence and allowed. Plaintiff appeals and assigns error.
The plaintiff drove his automobile more than 1,300 feet while he was blinded by the lights of the defendants' oil truck. According to his evidence, while he was traveling this distance he was so "blinded" he could see nothing in his lane of traffic. Yet he proceeded until he got even with the truck, "tapped the gas to go on through," and was within 12 or 15 feet of the tractor-trailer which was across his lane of traffic, before he "was first able to see it." He says he was going about 35 miles an hour when the collision occurred.
Conceding the negligence of the defendants in the respects alleged, nevertheless the contributory negligence of the plaintiff is manifest from his own testimony. Morris v. Transport Co., 235 N.C. 568, 70 S.E.2d 845; McKinnon v. Motor Lines, 228 N.C. 132, 44 S.E.2d 735; Riggs v. Gulf Oil Corp., 228 N.C. 774, 47 S.E.2d 254; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Atkins v. Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Pike v. Seymour, 222 N.C. 42, 21 S.E.2d 884; Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887; Dillon v. Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Sibbitt v. Transit Co., 220 N.C. 702, 18 S.E.2d 203; 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; Weston v. R. R., 194 N.C. 210, 139 S.E. 237.
In McKinnon v. Motor Lines, supra, Robert H. McKinnon testified that he ran in a "blinded area" for two or three seconds, at a speed of 35 miles an hour and for a distance of 100 feet — other witnesses put it at 100 yards or 400 feet — when he was completely blinded and could see nothing in front of him except the right-hand edge of the road. While he was so blinded he ran into the rear of a slowly moving or stalled truck which was being operated without rear lamps as required by G.S. 20-129. On this evidence, Stacy, C.J., speaking for the Court, said: "Both his vision and his prevision seem to have failed him at one and the same time. Such is the stuff of which wrecks are made. The conclusion seems inescapable that the driver of the McKinnon car omitted to exercise reasonable care for his own and his companion's safety, which perforce contributed to the catastrophe. This defeats recovery . . ."
It is clear that the plaintiff in this action failed to exercise reasonable care for his own and his brother-in-law's safety under the existing circumstances, and that such failure contributed to their personal injuries and the damage to plaintiff's automobile. This defeats the plaintiff's right to recover.
The ruling below in sustaining defendants' motion for judgment as of nonsuit will be upheld.
Affirmed.
ERVIN and JOHNSON, JJ., dissent.