Punch ex rel. Punch v. Landis

Higgins, J. The evidence indicated that Thomas Wesley Weaver, Douglass E. Houser, Russell Wayne Scarlett, Larry Nelson Scarlett, and the plaintiff were riding in the Chevrolet at the time of the collisions. All were killed except the plaintiff. He was a guest passenger riding in the back seat. The personal representatives of Weaver and Houser instituted separate civil actions against all the defendants for damages under the wrongful death statute. The cases were consolidated and tried together. The jury absolved all defendants from liability. On appeal, this Court held the record of the trial failed to disclose error. (256 N.C. 677) This plaintiff was not a party to the former actions and hence not bound by the jury’s findings. In this case the jury found the defendants were guilty of actionable negligence which caused the plaintiff’s injury. From the judgment on the verdict, they appealed. The defendants T. E. Landis and C. E. Landis, trading as Landis Motors, contended the evidence was insufficient to present a jury question as to their actionable negligence and that the court committed error in denying their motion to dismiss. In passing on their motion they must be charged with any negligent failure to have the rear of the Chair Company’s van properly lighted. Their agent attached it to their wrecker and undertook the towing operation. In order to protect himself from the glare of the van’s driving lights, he turned them off. This also cut off the tail lamp. However, the evidence disclosed that seven marginal lights in good working order — one at each of the four corners and three along the lower margin of the van — were burning on the van during the towing operation. In addition, three red reflector lights were installed on each mud guard over the rear wheels. The plaintiff alleged failure to have a stop lamp as required by G.S. 20-129 (g). However, the plaintiff’s complaint in Article 14, alleged the van was a 1952 model. Hence it was not affected by the stop lamp section which applied only to vehicles manufactured since December 31, 1955. The lights displayed on the [119] rear of the van would seem to be sufficient to warn following motorists. The ribbon of fog over the stream was extremely dense. But it was very narrow and covered the road for only a few hundred feet. Neither the speed — 10-15 miles per hour — nor the act of stopping after the first impact can be held as actionable negligence. The driver of a vehicle involved in an accident is required to stop. G.S. 20-166 (b). The evidence of negligence on the part of T. E. Landis and C. E. Landis, trading as Landis Motors, was insufficient to be submitted to the jury. The trial court committed error in overruling their motion for nonsuit. The defendant Mrs. Scarlett, both individually and as administra-trix, insists the court committed error in overruling her motion to nonsuit at the close of all the evidence. In following the wrecker and the towed vehicle, the driver of the Chevrolet at all times was in the proper lane. The speed in the dense fog could not have been great. The contact with the rear of the van was relatively light and not enough to interfere with Truitt’s operation. The position of the towed vehicle was not changed. Truitt testified: “I was traveling 10-15 miles per hour when I felt the impact. I just knew the furniture van had been hit. So far as I could tell the first impact did not have any effect upon the operation of the truck. By this I mean it still rolled free. . . . After the second impact ... I could not move it.” The evidence fails to show the plaintiff sustained any injury as a result of the first impact. We must conclude from the continued movement of the wrecker and the van the Chevrolet was not under the van while Truitt was slowing down. All the evidence disclosed that the “dug out” place in the concrete was under the Chevrolet after the second impact. There was debris both in front of the Chevrolet, under it, and to the rear after the second impact. The evidence of Truitt was explicit that the damage to the wrecker was caused by the second impact which drove the front of the van into his wrecker with such terrific force that it caused the extensive damage which he describes. The extensive damage to the undercarriage of the van was caused by the second impact. This second impact after the slowing down operation, consuming five to ten seconds, apparently drove the Chevrolet under the van with such force that the top was pushed back, the hood driven into the occupants, causing the death of the four and injury to the plaintiff. Evidence is lacking that any injury to the plaintiff resulted from the first impact. To make out a case the evidence must show negligence and resulting damage or injury. Benthall v. Hog Market, 257 N.C. 748; Wilson v. Geigy, 236 N.C. 566, 73 S.E. 2d 487. The motion for nonsuit [120] by Mrs. Scarlett, individually, and as administratrix, should have been allowed. Gatlin v. Parsons, 257 N.C. 469, 126 S.E. 2d 51; Riddle v. Artis, 246 N.C. 629, 99 S.E. 2d 857. The evidence permits the inference that Abernethy’s Ford station wagon crashed into the rear of the Chevrolet, drove it under the van, shearing off the top more than half way back, injuring the plaintiff who was a guest passenger in the back seat, and killing the four other occupants. The impact of the Chevrolet upon the rear of the van was relatively light. The front of the van was not raised on the wrecker. The movement of the wrecker was free and easy and continued for five to ten seconds during which Truitt brought it to a stop. At that instant the Ford station wagon crashed into the rear. The van, weighing 22,000 pounds, was driven upon the bed of the wrecker, making a shambles of the heavy towing equipment and lifting the front of the van from its former position ■ — • 15-18 inches in the towing position — to an elevation of 4% to 5 feet above the road surface. This impact caused a piece of steel from the wreckage to strike Carroll who was climbing the bank several feet from the road. The Chevrolet was driven under the van so that the wrecker and the attached van could not be moved. The extent of this wreckage unquestionably indicates excessive speed. Increase in speed multiplies the destructive force generated by a moving automobile. Such is nothing more than the application of the law of physics. The evidence of actionable negligence on the part of William Lafayette Abernethy, Houston Donnell Havnaer, and Abernethy’s, Inc., was sufficient to go to the jury and to sustain the finding of negligence as to them. Their objections to the court’s charge are not sustained by the record. Error insofar as these defendants are concerned is not disclosed. On the appeal of T. E. Landis and C. E. Landis, trading as Landis Motors, and Henry Click Truitt, the judgment is Reversed. On the appeal of Edna Wrenn Scarlett, individually and as ad-ministratrix of Russell Wayne Scarlett, the judgment is Reversed. On the appeal of William Lafayette Abernethy, Houston Donnell Havnaer, and Abernethy’s, Inc., we find No error.