White v. Mote

Beanch, J. Defendants contend the trial court erred in overruling their motions for nonsuit when plaintiff rested and at the close of all the evidence. In support of this contention defendants argue: (1) That there was not sufficient evidence of actionable negligence to justify submitting the issue to the jury, and (2) plaintiff *550 was guilty of contributory negligence as a matter of law. Defendants further contend the action was barred in that defendant Town of Siler City had not waived its immunity from tort liability while performing a governmental function. Plaintiff alleged defendants were negligent in that: “(a) They failed to display adequate warnings, signs or indications for motorists on said street of the hazardous conditions which they knew or should have known would be created by their spraying operations. (b) They failed to display a rear flashing light or provide any signal whatsoever to approaching rear traffic while knowing that the fog which was being emitted was impenetrable, blinding, and generally hazardous. (c) They failed to exercise that degree of care in the operation of said vehicle required of a reasonably prudent person under the circumstances then and there existing. (d) They failed to exhibit a red light plainly visible under normal atmospheric conditions from a distance of five hundred feet to the rear of such vehicle, as required by North Carolina General Statutes 20-129 (d). (e) They negligently failed to equip said truck with two light reflectors, one on each side, as required by North Carolina General Statute 20-129.1.” Considering the evidence in support of allegations (a), (b) and (c), we find this Court considered a similar situation in the case of Moore v. Plymouth, 249 N.C. 423, 106 S.E. 2d 695, where the municipality operated a fogging machine on its streets after sunset without warning or signals except for the lights on the vehicle and the noise of the operation, and a vehicle approached from its rear, ran into the fog, turned to its left of the highway, sideswiping a vehicle standing on the shoulder, and then colliding with another vehicle traveling in the opposite direction, which was also driving in the fog. Holding that the evidence was sufficient to be submitted to the jury on the question of negligence and proximate cause as to the municipality and its employees, this Court, speaking through Parker, J. (now C.J.), stated: “Considering the evidence in the light most favorable to plaintiff (as we are required to do in passing on a motion for judgment of nonsuit, Bridges v. Graham, 246 N.C. 371, 98 S.E. 2d 492), it is susceptible of a legitimate and fair inference by a jury that had it not been for the chemical fog or smoke created on the highway after sunset by the Town of Plymouth and its *551 employees Basnight and Barnes, who were acting within the course of their employment, totally or materially obscuring the vision of the traveling public at the time and place and interfering with the rights of the traveling public by creating a dangerous condition, with no warning or signals to the traveling-public of such condition, except such as appeared from the truck and fogging machine and fog and its noise in operation, the head-on collision between the trucks of Daniel and Manning, in which plaintiff was injured, might not have occurred, and that under all the surrounding facts and circumstances the Town of Plymouth, Basnight and Barnes could have reasonably foreseen that some injury or harm would probably result from the chemical fog or smoke on the highway.” Here, plaintiff’s evidence allows legitimate inferences which might be drawn therefrom by the jury tending to show that had it not been for the chemical fog created by defendants after sunset, materially obscuring the vision of plaintiff and interfering with his right and the right of the traveling public by creating a dangerous condition, without warnings or signals to warn the public of such condition, except such as appeared from the truck, fog and fogging machine and its noise of operation, the collision which caused plaintiff’s injuries and property damage might not have occurred, and under the circumstances defendants could or should have reasonably foreseen that some injury or harm would probably result from the chemical fog or smoke on the highway. Further, considering the evidence in the light most favorable to plaintiff, as we are required to do in passing on a motion for nonsuit, Moore v. Plymouth, supra, there is sufficient evidence for the jury to find that the defendant Town of Siler City failed to equip its truck with two reflectors on the rear, one at each side, in violation of G.S. 20-129.1, and that defendant Town failed to equip its truck with a rear light of a type which has been approved by the Commissioner of Motor Vehicles, and which exhibits a red light plainly visible under normal atmospheric conditions from a distance of 500 feet to the rear of such vehicle, in violation of G.S. 20-129 (d). It is stated in Scarborough v. Ingram, 256 N.C. 87, 122 S.E. 2d 798: “The statutes prescribing lighting devices to be used by motor vehicles operating at night (G.S. 20-129 and 129.1) were enacted in the interest of public safety. ... A violation of these statutes constitutes negligence as a matter of law. Bridges v. Jackson, 255 N.C. 333; Lyday v. R. R., 253 N.C. 687, 117 S.E. 2d 778.” We must agree with the trial judge that there was sufficient evi *552 dence of actionable negligence on the part of defendants to justify submitting the issue of negligence to the jury. The more troublesome question is whether plaintiff was guilty of contributory negligence as a matter of law. Defendants so contend on the grounds that (a) plaintiff operated his automobile at a speed greater than was reasonable under existing conditions, (b) he followed defendants’ vehicle too closely, and (c) he failed to keep a proper lookout and failed to exercise ordinary care. There is not sufficient evidence of excessive speed to show contributory negligence as a matter of law. Defendants cannot rely on plaintiff’s statement that he was going “35 to 40 miles per hour” to sustain their contention that he was guilty of contributory negligence as a matter of law, as the evidence shows this was in a residential-business area, and, taking the statement in the light most favorable to plaintiff, we must take the speed to be the lawful 35 miles per hour in a residential area. Further, the physical facts do not establish clearly that no other conclusion might be drawn except a conclusion of excessive speed. Plaintiff testified he did not have time to apply brakes or to slow down between the time he saw the fog and the time he collided with defendants’ truck. The impact at a speed of 35 miles per hour reasonably could have been sufficient to bend the wheel of the truck and loosen the equipment which was described as being “relatively permanently affixed to the truck.” The driver testified that after the collision “the truck was running full throttle a good distance down the road before I regained control of it.” Thus, the driver’s testimony would explain the distance the truck traveled and the fact that the equipment was some distance from the place where the truck was stopped. “A nonsuit on the ground of contributory negligence will be granted only when the plaintiff’s evidence establishes the facts necessary to show contributory negligence so clearly that no other conclusion may be reasonably drawn therefrom.” Waters v. Harris, 250 N.C. 701, 110 S.E. 2d 283; Keener v. Beal, 246 N.C. 247, 98 S.E. 2d 19. The evidence presents diverse inferences as to excessive speed on the part of plaintiff, and, on this point, a question of fact is presented for the jury. Defendants contend the fact that plaintiff was the following driver involved in a, rear-end collision affords sufficient evidence to make him guilty of contributory negligence as a matter of law. To support this contention defendants cite McKinnon v. Motor Lines, 228 N.C. 132, 44 S.E. 2d 735; Morris v. Transportation Co., 235 N.C. 568, 70 S.E. 2d 845; Smith v. Metal Co., 257 N.C. 143, 125 S.E. 2d *553 377. Both the McKinnon and Morris cases were decided prior to the amendments to G.S. 20-141 (e) by the 1953 General Assembly, which added the proviso: “that the failure or inability of a motor vehicle operator who is operating such vehicle within the maximum speed limits prescribed by G.S. 20-141 (b) to stop such vehicle within the radius of the lights thereof or within the range of his vision shall not be considered negligence per se or contributory negligence per se in any civil action, but the facts relating thereto may be considered with other facts in such action in determining the negligence or contributory negligence of such operator.” Further, in Smith v. Metal Co., supra, and McKinnon v. Motor Lines, supra, the plaintiffs continued to drive some distance after being “blinded” by the lights of another vehicle before striking the parked or slowly moving vehicles without attempting to stop their respective vehicles. The Court held this was contributory negligence. Here, plaintiff testified: “When I first observed the fog was when I first took my foot off the gas; I went to go for the brake but I didn’t have time. . . .” The distinction in the cases relied on by defendants and this case is that in the instant case plaintiff immediately acted upon seeing the danger, while in the cases cited by defendants the plaintiffs continued in the same course of action for some time and distance after being faced with apparent danger. Defendants also rely on the case of Burnett v. Corbett, 264 N.C. 341, 141 S.E. 2d 468, which holds that the mere fact of a collision with the vehicle ahead offers some evidence that the motorist in the rear was not keeping a proper lookout or that he was following too closely. “The following driver is not, however, an insurer against rear-end collisions for, even when he follows at a distance reasonable under the existing conditions, the space may be too short to permit a stop under any and all eventualities.” Beanblossom v. Thomas, 266 N.C. 181, 146 S.E. 2d 36. Burnett v. Corbett, supra, is bottomed on a violation of G.S. 20-152 (a) which appeared from the plaintiff’s own testimony. Here, there is no evidence which would tend to show that plaintiff followed any vehicle more closely than was reasonable and prudent under the circumstances. The more serious question raised by the rear-end collision is whether plaintiff was keeping a proper lookout. We recognize the rule that “One who operates a motor vehicle must be reasonably vigilant and anticipate the use of the highways by others. A failure to maintain a reasonable lookout is negligence.” Clark v. Emerson, 245 N.C. 387, 95 S.E. 2d 880. But he will not be held to the duty of being able to bring his automobile to an immediate stop on the sudden arising of a dangerous situation which he could not have rea *554 sonably anticipated. Privette v. Lewis, 255 N.C. 612, 122 S.E. 2d 381. In this connection plaintiff testified that he was looking straight ahead while operating his automobile, which was equipped with good headlights. He further stated that he heard no unusual noise. Plaintiff’s witness Henry Kimball also testified: “As to whether or not it was difficult to1 see the spray or the tmck, it was difficult to see lots of times.” (Emphasis ours) Plaintiff’s evidence would permit a jury to find that he was driving his automobile at nighttime at a legal rate of speed, with good headlights and while keeping a proper lookout; that the atmospheric conditions were such that the fog or smoke hung closely to the truck so that neither the fog nor the truck was apparent or visible to plaintiff until it was too late for him to avoid a collision with the truck. There being evidence of contributory negligence on the part of plaintiff and also competent evidence from which the jury could reasonably reach a contrary conclusion, we hold that the plaintiff was not guilty of contributory negligence as a matter of law. Waters v. Harris, supra. Defendant Town of Siler City was engaged in a governmental function at the time of the accident. Moore v. Plymouth, supra. The final question presented is whether the Town of Siler City had waived its governmental immunity prior to the date of the accident by procuring the insurance policy introduced in evidence by plaintiff in the absence of the jury. G.S. 160-191.1 provides: “The governing body of any incorporated city or town, by securing liability insurance as hereinafter provided, is hereby authorized and empowered, but not required, to waive its governmental immunity from liability for any damage by reason of death, or injury to person or property, proximately caused by the negligent operation of any motor vehicle by an officer, agent or employee of such city or town when acting within the scope of his authority or within the co\irse of his employment. Such immunity is waived only to the extent of the amount of the insurance so obtained. Such immunity shall be deemed to have been waived in the absence of affirmative action by such governing body.” Where a municipal corporation procures liability insurance on a vehicle used by it in the performance of a governmental function, it may, but is not required to, waive its governmental immunffy for the negligent operation of such vehicle to the extent of the amount of liability insurance. Moore v. Plymouth, supra; Seibold v. Kin *555 ston, 268 N.C. 615, 151 S.E. 2d 654. In regard to the defendants’ contention that the municipality had not waived governmental immunity, the statute (G.S. 160-191.1) clearly states: “Such immunity shall be deemed to have been waived in the absence of affirmative action by such governing body.” Laws in effect at the time of issuance of a policy of insurance become a part of the contract, and provisions in the policy contrary to the statute are of no effect. Brown v. Casualty Co., 241 N.C. 666, 86 S.E. 2d 433. In the instant case the uncontradicted evidence is that prior to May 25, 1965 defendant Town of Siler City secured liability insurance on one 1955 International 2-ton garbage truck, No. R 16240157, which was the same truck involved in the accident. Further, that no affirmative action relative to tort liability was taken by the Town of Siler City other than the procuring of the insurance. The judgment recovered was within the limits of the policy issued, and the policy was in effect on 25 May 1965. We see no merit in defendant’s contention that the policy issued to it has language which refers to an individual rather than a municipality. It is clear that the policy was issued to defendant Town of Siler City, a municipal corporation, and that the intent of the parties was to insure the municipality against tort liability within specified limits. “An insurance policy is only a contract and the intention of the parties is the controlling guide in its interpretation.” Gaulden v. Insurance Co., 246 N.C. 378, 98 S.E. 2d 355. The policy issued to defendant Town of Siler City contains in Sec. 4 of the Declarations a coded “Liability Classification” designating the insured vehicle as one to be used for commercial purposes. Part III of the Insuring Agreement reads in part as follows: “III. Definition of Insured: (a) With respect to the insurance for bodily injury liability and for property damage liability the unqualified word ‘insured’ includes the named insured and, if the named insured is an individual, . . .” The above wording clearly contemplates insurance on entities other than individuals. Nor should defendants be absolved from liability because the truck involved was described as a garbage truck. The vehicle was identified as to make, year, model and identification number. There can be no mistake as to its identity. Since policies of insurance are prepared by the insurer, they are liberally construed in favor of the insured, and strictly construed against the insurer. Barker v. Insurance Co., 241 N.C. 397, 85 S.E. 2d 305. Surely, in this case it was not the intent of either party that an *556 insurance policy solely for the benefit of an individual be issued to a municipal corporation as the insured. Further, had it been the intent of the insurer to escape liability because of the description or use of a named vehicle, the excluded description or use could have and should have been written into the policy. The judgment of the court below is Affirmed.