Williams v. Frederickson Motor Express Lines, Inc.

BbogdeN, J. The plaintiff was driving an automobile in tbe night time, up grade on a dry hard-surfaced road, with the lights on his car properly adjusted, and ran into an unlighted truck apparently parked on the hard surface on the right-hand side of the road as plaintiff was approaching. The bottom of the truck stood fifty inches from the ground, and the lights on plaintiff’s car upon a level surface would have thrown a beam something like two hundred yards. There is no evidence as to how far the beam would have been thrown while traveling up grade. The defendant was plainly guilty of negligence by reason of express violation of C. S., 2621 (77) and 2621 (94),. and hence the determinative question at issue is whether the plaintiff was guilty of contributory negligence, barring recovery, as a matter of law. The defendant relies upon Hughes v. Luther, 189 N. C., 841, 128 S. E., 145, and Weston v. R. R., 194 N. C., 210, 139 S. E., 237. Neither of these cases is applicable to the facts disclosed in the present record. In the Hughes case the plaintiff saw the unlighted truck parked on the highway 75 yards a,way, and was therefore fully .apprised of the danger, and yet, took no precaution for his own safety. In the Weston case there was no evidence that the defendant was guilty of any negligence at all. Furthermore, the plaintiff in that ease was fully apprised of the danger because he discovered in the rain and mist an object in front of him. Notwithstanding, “he made no effort to reduce his speed until it was too late.” In the present case, the evidence tended to show that the plaintiff did not see the unlighted truck and had no notice of impending danger until he was within five or ten feet thereof. The question is: Ought he to have seen, in the exercise of ordinary care for his own safety; or to state it differently, was his failure to see, under the circumstances, contributory negligence as a matter of law ? In the case of Harrison v. R. R., 194 N. C., 656, 140 S. E., 598, Stacy, C. J., wrote: “In its present state, the law is not able to protect one who has eyes and will not see — ears and will not hear.” Furthermore, the law- imposes upon the driver of a motor vehicle the duty of keeping a reasonably careful lookout, not only for other travelers, who are using the highway, but for dangers incurred along the journey. Huddy on Automobiles, 7th ed., 950. As to whether a motorist, at a given time, was keeping a reasonably careful lookout to avoid danger is ordinarily an issue of fact, and hence the determination of such fact is for a jury. Moreover, the question as to whether it is contributory neg *196 ligence as a matter of law to run into an unlighted truck in tke night time, upon a. straight road, and where there is nothing to obscure the vision of the driver, has been debated by many courts of this country. An examination of the cases dealing with the subject discloses that there is a wide difference in the judicial thinking upon the subject. For instance, the Kansas Court in Haines v. Carroll, 267 Pac., 986, has held that under such conditions it is contributory negligence as a matter of' law and no recovery can be had. The Washington Court, in a decision rendered in September, 1927, in the case of Millspaugh v. Alert Transfer Co., 259 Pac., 22, held that the driver of a motorcycle, running into an unlighted truck was guilty of negligence as a matter of law. It appeared, however, that the lights of the motorcycle were weak. Upon the other hand, the Oregon Court in Murphy v. Hawthorne, 244 Pac., 79, 44 A. L. R., 1397, holds that colliding with an unlighted truck in the night time raises an issue of fact for the jury. To the same effect is the holding of the Connecticut Court in Rozycki v. Grain and Products Co., 122 Atlantic, 717, 37 A. L. R., 582. It is to be noted, however, that there was evidence of circumstances obscuring the vision of the driver. The Arkansas Court, in the case of Coca-Cola Bottling Co. v. Shipp, decided in 1927, 297 S. W., 856, held that it was contributory negligence as a matter of law to run into a truck parked on the highway at night. Upon rehearing this ruling was reversed upon the ground that such facts raised an issue for the jury. The final ruling of the court upon rehearing was by a four to three vote. These cases from other jurisdictions are referred to, in order to show the existing difference in judicial opinion upon the subject. However, in this State, the law with respect to nonsuit upon the ground of contributory negligence is well settled. The main difficulty consists in applying the settled rules of law to the facts of a given case. In Battle v. Cleave, 179 N. C., 112, 101 S. E., 555, Hoke, J., expressed the principle tersely and succinctly in these words: “The burden of showing contributory negligence, however, is on the defendant, and the motion for nonsuit may never be allowed on such an issue where the controlling and pertinent facts are in dispute, nor where opposing inferences are permissible from plaintiff’s proof, nor where it is necessary in support of the motion to rely, in whole or in part, on evidence offered for the defense.” Applying this declaration of law to the facts disclosed in the present record, are there “opposing inferences permissible from plaintiff’s proof” ? The evidence for plaintiff tended to show that he was keeping a proper lookout but that he was traveling up grade at the time of the collision, and the lights of his automobile having been adjusted accord *197 ing to law, threw tbe rays “down on tbe surface of tbe road.” Hence tbe lights would not “pick up” tbe truck, tbe bottom of which was standing fifty inches from tbe ground. We are of tbe opinion that “opposing inferences” are permissible from plaintiff’s proof, and therefore tbe case was properly submitted to tbe jury. No error.