Parkway Bus Co. v. Coble Dairy Products Co.

DeviN, J. While there was evidence of negligence on the part of the defendant in leaving parked on the highway after dark an unlighted truck, without flares or signals, in violation of G. S., 20-161 (Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Allen v. Bottling Co., 223 N. C., 118, 25 S. E. (2d), 388), we think the motion for judgment of nonsuit interposed at close of plaintiff’s evidence, on the ground of the contributory negligence of the driver of plaintiff’s bus, was properly allowed. Austin v. Overton, 222 N. C., 89, 21 S. E. (2d), 887. The correct determination of legal responsibility for injury resulting from a rear-end collision on a highway at night between an unlighted standing vehicle and one that is moving is frequently attended with *354 difficulty. The line of distinction between those cases where a question of fact for the jury is raised, and other cases where as a matter of law on plaintiff’s evidence contributory negligence is manifest, is not always easy to draw, but from an examination of the plaintiff’s evidence here ve are led to the conclusion that this case falls within the latter category. In the two latest cases on the subject, Tyson v. Ford, 228 N. C., 778, 47 S. E. (2d), 251, and Riggs v. Oil Corp., 228 N. C., 774, 47 S. E. (2d), 254, on facts similar to those in evidence here, judgments of non-suit were upheld. In the Tyson case, Chief Justice Stacy cites the recent decisions of this Court on the subject, on one side or the other of the question again presented by this appeal, and we think the ruling of the court below in this case is supported by the cases referred to. Smith v. Sink, 211 N. C., 725, 192 S. E., 108; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Pike v. Seymour, 222 N. C., 42, 21 S. E. (2d), 884; Atkins v. Transportation Co., 224 N. C., 688, 32 S. E. (2d), 209; McKinnon v. Motor Lines, 228 N. C., 132, 44 S. E. (2d), 735. We have examined the eases cited by the plaintiff, but do not find them controlling. In Clarke v. Martin, 215 N. C., 405, 2 S. E. (2d), 10, the situation was complicated by the fact that a searchlight attached to the cab of the parked truck was casting its rays to the rear. In Cummins v. Fruit Co., 225 N. C., 625, 36 S. E. (2d), 11, the plaintiff at the moment was blinded by the lights of an approaching car. In Williams v. Express Lines, 198 N. C., 193, 157 S. E., 197, the Court was of opinion that there 'was a reasonable inference that under the existing conditions the plaintiff could not have seen the truck in time to have avoided the injury; and this view was made the basis of decision in Lambert v. Caronna, 206 N. C., 616, 175 S. E., 303. Hobbs v. Drewer, 226 N. C., 146, 37 S. E. (2d), 121, and Hobbs v. Coach Co., 225 N. C., 323, 34 S. E. (2d), 211, involved head-on collisions. In Cole v. Koonce, 214 N. C., 188, 198 S. E., 637, where nonsuit was reversed, it was thought by the Court that the evidence did not point to the contributory negligence of the plaintiff with that clearness and singleness of inference which must obtain to justify taking the case from the jury. A review of the decisions of this Court on this subject illustrates the statement in Cole v. Koonce, supra, that “practically every case must stand on its own bottom.” On the evidence which appears of record in the case at bar, we hold that the judgment of nonsuit was properly entered. Affirmed.