Bundy v. Belue

-Rodmanv J. Plaintiff’s Appeal. That plaintiff sustained serious injuries in the collision• is not controverted. Hence this appeal presents only these questions: (1) Is there evidence which will permit but not-compel a jury finding of actionable negligence by Salmon and Helms? (2) Does the evidence compel the conclusion that plaintiff negligently contributed to the collision and resulting injuries? Plaintiff testified that he was traveling south on his way to Charlotte from his home in Williamston. He had stopped in Raleigh for supper. He was driving a new Buick and had not exceeded 55 m.p.h. anywhere on the trip. As he traveled up the hill he could see the reflection of headlights on the other side of the hill but could not tell how many until he reached and passed the crest of the hill. When he reached, the crest of the hill, he was traveling 40 to 45 m.p.h. He then saw the two approaching vehicles, one in the east lane (correct side for vehicles going north), the other in plaintiff’s lane attempting to pass the easternmost vehicle. He recognized these vehicles as tractor-trailers, or large trucks by their body lights. The vehicle in plaintiff’s lane was “trying his best to get back in his line of traffic, pass the other truck and get back in his line, of traffic.” Plaintiff thought the driver of the approaching truck would succeed in his attempt to pass and get into the proper lane. The tractor portion did so, but the trailer portion did not clear plaintiff’s lane, and he was unable to avoid striking the rear portion of the trailer. Plaintiff did not immediately apply his brakes when he passed the crest and saw the approaching vehicle. To supplement his own testimony, plaintiff called defendant Belue as a witness. Belue testified: He first saw the Helms truck when he was ascending the hill. It was a quarter of a mile away, parked or stopped on the east shoulder of the road about one foot from and parallel with the paved portion. It was 100 to 150 yards south of the crest of the hill. When he was 50 feet south of the Helms truck, it, *35 without-warning, began backing, into the.paved -portion and;,directly in his line of travel. He was traveling at-that-time-about 20 m.p.h. To. avoid a collision he pulled to his left and.-partially into ;the;west lane. Plaintiff suddenly appeared over the hill. as. the witness w.as passing the Helms truck. Witness sought to ..get- his. vehicle back into the east lane. He succeeded except for the-rear portion of the trailer. When Belue passed the Helms truck, it continued backing into and completely across the highway. Plaintiff was traveling 70 m.p.h when he crested the hill and did not reduce his speed before colliding with the trailer. The highway patrolman who investigated the accident, a witness for plaintiff, expressed the opinion on cross-examination that plaintiff was under the influence of intoxicating liquors. Plaintiff denied this testimony, testifying that he had not consumed any alcoholic beverage for several years. Defendants Salmon and Helms, in their answer, admit the failure of the brakes on their vehicle and because of such failure parking the vehicle on the shoulder of the road. They allege the entire paved area was free of any obstruction created by it and deny any backing of their vehicle. Motorists are required to equip their vehicles with adequate brakes and to maintain these brakes in good working condition, G.S. 20-124(a). When a vehicle is parked, our statutes require a setting of the brakes, G.S. 20-124 (b), G.S. 20-163. A violation of these statutes is negligence. Arnett v. Yeago, 247 N.C. 356, 100 S.E. 2d 855. One who backs a vehicle into a highway without taking reasonable precautions to warn and protect others using the highway and without seeing that such movement can be done in reasonable safety is negligent. Clark v. Emerson, 245 N.C. 387, 95 S.E. 2d 880; Murray v. Wyatt, 245 N.C. 123, 95 S.E. 2d 541; Gentile v. Wilson, 242 N.C. 704, 89 S.E. 2d 403; Adams v. Service Co., 237 N.C. 136, 74 S.E. 2d 332; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 830; Croom v. Petty, 215 N.C. 465, 2 S.E. 2d 374. While defendants Salmon and Helms admit parking on an incline with defective brakes, they deny any movement by their vehicle. Plaintiff’s evidence, if accepted by the jury as true, is sufficient to establish such movement and a movement in an unsafe manner. If such an unsafe movement was made, it is immaterial whether it was an intentional movement or was caused by the defective brakes. The operator could have foreseen Belue’s effort to avoid the backing truck, throwing him into the lane of southbound traffic. *36 There is a conflict in the evidence with respect to the facts pleaded as contributory negligence. Plaintiff is entitled to have, a jury ascertain the facts on the issues arising on the pleadings. On plaintiff’s appeal: Reversed. Defendants’ Appeal. The theory on which plaintiff originally sought to hold Belue and Great Southern responsible for his injuries was the asserted negligent attempt Belue to pass the Helms vehicle moving in the same direction in violation of G.S. 20-150. When plaintiff filed his amended complaint charging the Helms vehicle with a negligent backing into the highway in front of the approaching Great Southern truck, he abandoned his original theory of the case. He alleged facts creating a sudden emergency confronting Belue and sought to hold Belue and Great Southern liable on his allegation that Belue should have known of plaintiff’s approach and with that knowledge went further into plaintiff’s lino of travel than was reasonably 'necessary to avoid the backing Helms vehicle. The evidence conforms to the allegation in the amended complaint with respect to the asserted negligence of Salmon and Helms and is sufficient to require submission to the jury as held in plaintiff’s appeal. Plaintiff must prove his case in conformity with the facts he alleges to create liability. Moore v. Singleton, 249 N.C. 287, 106 S.E. 2d 214; Spaugh v. Winston-Salem, 249 N.C. 194, 105 S.E. 2d 610; Lucas v. White, 248 N.C. 38, 102 S.E. 2d 387; Calloway v. Wyatt, 246 N.C. 129, 97 S.E. 2d 881. He is entitled to have his testimony interpreted in the light of his allegations if fairly susceptible to such an interpretation. Plaintiff’s testimony that when he came over the crest of the hill the lights of one vehicle indicated it was in the northbound lane and the lights of the other vehicle in the southbound lane, interpreted in the light of plaintiff’s allegation, serves to support and corroborate the testimony of Belue that Salmon had backed into the highway, forcing Belue into the other lane. It should not be construed to mean that both vehicles were proceeding north-wardly and in so proceeding Belue had negligently attempted to pass the Helms vehicle. Such interpretation would be in contradiction of his allegations, and if the correct interpretation of his testimony, would defeat his right to recover from either because of the material variance between the evidence and the allegations of the amended complaint. When one is suddenly confronted with an emergency, he is only *37 held to that degree of care which a reasonably prudent man would exercise under like circumstances. He is- not chargeable with actionable negligence merely because he fails to make the wisest choice. Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383; O’Kelly v. Barbee, 223 N.C. 282, 25 S.E. 2d 750; Bullock v. Williams, 212 N.C. 113, 193 S.E. 170; Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562. Plaintiff’s evidence did not support his allegation that Belue drove further to the left under the existing conditions than a reasonably prudent man would have done nor did he offer evidence of unlawful speed by Belue. Since he failed to offer evidence on which a jury could find actionable negligence by Belue, it follows that the motion to nonsuit made by Belue and Great Southern should have been allowed. On defendants’ appeal Reversed.