Dillon v. City of Winston-Salem

WiNbobne, J. While there are other assignments of error on this appeal, only that which challenges the correctness of the judgment as of nonsuit requires consideration. And, as to that, we agree with lower court. If it be conceded that there is sufficient evidence, as against either or both defendants, to require the submission of an issue or issues of negligence) we are of opinion that the evidence, offered by plaintiff, clearly establishes that the driver, in the operation of the automobile in which intestate was riding when fatally injured, is, upon his own statement, guilty of negligence, which, as a matter of law, if not insulating any negligence of defendants, under principle enunciated in Smith v. Sink, 211 N. C., 125, 192 S. E., 108; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Butner v. Spease, 217 N. C., 82, 6 S. E. (2d), 808; Chinnis v. R. R., 219 N. C., 528, 14 S. E. (2d), 500; Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; Peoples v. Full, 220 N. C., 635, 18 S. E. (2d), 147; and Jeffries v. Powell, ante, 415, at least proximately contributed to the injury and death of intestate, Weston v. R. R., 194 N. C., 210, 139 S. E., 237; Lee v. R. R., 212 N. C., 340, 193 S. E., 395; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Sibbit v. Transit Co., 220 N. C., 702, 18 S. E. (2d), 203, and that the negligence of the driver is imputable to intestate who was directing the operator of the automobile. It is provided by statute in this State that “The driver of a motor vehicle when traveling upon a down grade on any highway shall not coast with the gears of such vehicle in neutral.” Public Laws 1937, *519 ch. 407, sec. 127. Tbe violation of snob statute is negligence per se, and, if injury to tbe violator proximately result therefrom, it would bar bis right to recover therefor. Furthermore, it is a general rule of law, even in tbe absence of statutory requirement, that tbe operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep a reasonably careful lookout and to keep same under such control at night as to be able to stop within the range of his lights. Weston v. R. R., supra; Lee v. R. R., supra; Beck v. Hooks, supra; Sibbit v. Transit Co., supra. In Weston v. R. R., supra, speaking to a factual situation somewhat similar to that here, this Court said: “The general rule under such circumstances is thus stated in Huddy on Automobiles, 7 Ed., 1924, sec. 296. Ht was negligence for the driver of the automobile to propel it in a dark place in which he had to rely on the lights of his machine at a rate faster than enabled him to stop or avoid any obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of obstructions ... If the lights on the automobile would disclose obstructions only ten yards away it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than ten yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen’ ” This principle has been brought forward and applied in Lee v. R. R., supra; Beck v. Hooks, supra; and Sibbit v. Transit Co., supra, and held applicable to factual situation in Clarke v. Martin, 217 N. C., 440, 8 S. E. (2d), 230. And in Beck v. Hooks, supra, the rule is stated in this way: “It is not enough that the driver of plaintiff’s automobile be able to begin to stop within the range of his lights, or that he exercise due diligence after seeing defendants’ truck on the highway. He should have so driven that he could and would discover it, perform the manual acts necessary to stop, and bring the automobile to a complete stop within the range of his lights. When blinded by the lights of the oncoming car so that he could not see the required distance ahead, it was the duty of the driver within such distance from the point of blinding to bring his automobile to such control that he could stop immediately, and if he could not then see, he should have stopped. In failing to so drive he was guilty of negligence which patently caused or contributed to the collision with defendant’s truck, resulting in injury to plaintiff,” the owner and passenger. *520 Applying this principle to the evidence in case in hand, it affirmatively appears: (1) That the driver of the automobile, by pushing the clutch in, had thrown the ear out of gear, and was permitting it to coast down hill. This was negligence per se. (2) That the driver was blinded by the glare of the street light. If as he says he was blinded as he “was going towards the street light,” it occurred more than 49.3 feet before he reached the sidetracks — that being the distance from the light to the sidetracks; and it occurred more than one hundred feet from the ditch bank. Yet he continued to drive blindly, and made no effort to slacken the speed at which he was traveling, or to stop as the circumstances required. Such conduct is negligence. Moreover, paraphrasing in part the words of Stacy, C. J., in Powers v. Sternberg, supra, there are a few physical facts here which speak louder than words. The force with which the automobile ran into the dirt embankment, “with its attendant destruction and death, establishes the negligence of the driver of the car as the proximate cause,” or at least a proximate cause, of the injury and death of intestate. Also, the principle prevails in this State that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such occupant is the owner of it, or has some control over the driver. Hunt v. R. R., 170 N. C., 442, 87 S. E., 210, and numerous other cases. This principle recognizes that where it appears that the passenger has or exercises control over the driver, negligence of the driver is imputable to the passenger. See Williams v. Blue, 173 N. C., 452, 92 S. E., 270, where the Court said: “Ownership of an automobile is not essential to charge one with responsibility for its operation . . . One in charge of operation of a motor vehicle, although he is neither the owner nor the person actually operating it, is nevertheless liable for injury sustained by third persons by reason of its negligent operation, as the person actually operating the vehicle will be deemed his servant irrespective of whether he employed him or not. 28 Cyc., p. 40.” Applying this principle to the present case the undisputed testimony of the driver is susceptible of only one meaning, and that is, on the trip in question the intestate of plaintiff was in charge, and directing the operation of the automobile'. Under such circumstances the negligence of the driver is imputed to him. It is sufficient to defeat recovery if the negligence of the driver, imputed to intestate of plaintiff, was a proximate cause of the injury and death of the intestate. It need not be the sole proximate cause. Consideration of other exceptions fails to reveal cause for disturbing the rulings of trial court. The judgment below -is Affirmed.