Luther v. Asheville Contracting Co.

Lake, J. The plaintiff offered in evidence the transcript of her adverse examination of Sam Bushnell, Vice President of the defendant, and of the cross examination of this witness by the defendant. She now assigns as error the refusal of the court to strike certain answers of this witness contained therein. Three of these were answers to questions propounded by the plaintiff and were responsive thereto. The other two were responses by the witness to questions by the defendant on cross examination. At the most, these are merely repetitious of his testimony upon direct examination by the plaintiff concerning the assumption by the State Highway Commission of responsibility for the erection and maintenance of the barricade and of signs giving warning of it and of the detour. There is no merit in any of these assignments of error. The plaintiff’s assignments of error 6, 7 and 8 relate to the overruling of her objection to evidence offered by the defendant. In passing upon a motion for judgment of nonsuit, evidence offered by the defendant is not to be considered, except insofar as it is favorable to the plaintiff or is in explanation of the plaintiff’s testimony without contradiction thereof. Martin v. Underhill, 265 N.C. 669, 144 S.E. 2d 872; Moss v. Tate, 264 N.C. 544, 142 S.E. 2d 161; Fox v. Hollar, 257 N.C. 65, 125 S.E. 2d 334. Accordingly, the testimony to which these assignments of error are directed has not been included in the foregoing statement of facts and has not been considered by us in passing upon the correctness of the judgment of nonsuit. In the absence of contrary indication in the record, it must be assumed that the trial judge observed this rule in passing upon the motion for judgment of nonsuit at the close of all the evidence. See Construction Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E. 2d 590. It is, therefore, not necessary for us, upon this appeal, to consider the validity of the objections by the plaintiff to this testimony. We come, therefore, to the question of whether the evidence, viewed in the light most favorable to the plaintiff, is sufficient to withstand the motion for judgment of nonsuit. Her evidence fails completely to establish her allegation that the defendant constructed the barricade across the highway or was under a duty to place flares, lights or other signs or signals warning of its presence. On the contrary, the evidence offered by the plaintiff establishes that the barricade was placed across the highway by the State Highway Commission to close the road west of the' barricade to traffic, and that the Commission assumed the responsibility [641] for the erection of necessary signs, warnings and signals at and along the highway approaching the barricade. The State Highway Commission was clearly acting within its authority when it determined, through its engineers, to erect a barricade across the highway so as to close the portion to the west of the barricade to public travel and to divert such traffic onto the bypass around the construction project. G.S. 136-26. Under this statute, the authority of the Commission, acting through its division engineer and its resident engineer, to contract with the defendant that the Commission would assume the responsibility for the erection of the barricade and for giving the appropriate warnings of its presence, can not be doubted. The defendant cannot be held liable for any neglect of the Commission in the location or the construction of the barricade, or in placing or maintaining lights or other devices to warn motorists of its presence upon the highway. See Moss v. Tate, supra. Thus, but for the parking of the defendant’s equipment west of the barricade, the plaintiff’s evidence clearly failed to show any breach of duty by the defendant. When the barricade was erected by the Commission, three weeks prior to this occurrence, that portion of the highway west of the barricade was closed to the public. It thereupon ceased to be a highway until it was reopened by the Commission, insofar as the right of the public to travel upon it, and the duty of the defendant to anticipate travel upon it were concerned. Consequently, the rule stated in Council v. Dickerson’s, Inc., 233 N.C. 472, 64 S.E. 2d 561, that a highway contractor owes a duty to exercise ordinary care for the safety of the public traveling over the road on which he is working, has no application. In parking its equipment west of the barricade, the defendant was not obstructing a public highway, and its liability to one driving a motor vehicle into such equipment must rest upon the common law principles of negligence. There is no evidence in the record to show how long this equipment had been so parked. There is no evidence to show that, on any other night during the three weeks that this barricade had been in place, the barricade and warning signs along the highway approach to it were not well lighted. The plaintiff’s evidence that there were no flares or other lights in front of the barricade, or in the vicinity of the warning signs along the highway as she approached the scene of the accident, is not sufficient to support an inference that this condition prevailed on other nights, or at the time the equipment was parked by the defendant, or at the time its employees left the construction site. There is no evidence whatever in the record to show that the defendant knew, or should have known, that the Highway Commission would not put or had [642] not put sufficient lights or other warnings in front of or upon the approaches to this barricade on the night in question. The plaintiff’s evidence shows that the Highway Commission assumed this responsibility. To park unlighted equipment 15 feet behind a barricade, which, itself, is properly lighted by flares or other signal devices and of the presence of which barricade due notice is given to approaching motorists by signs erected along the highway approach, is not actionable negligence. There could be no injury therefrom unless a motorist drove through the lighted barricade, which act the owner of the equipment is not required to foresee. Likewise, the defendant was not required to foresee that the Highway Commission would not, on this night, properly light the barricade and the warnings thereof erected along the highway, there being no evidence that it had ever failed to do so before. In Weavil v. Myers, 243 N.C. 386, 90 S.E. 2d 733, Parker, J., now C.J., said for the Court: “It is a well settled principle of law that a person is not bound to anticipate negligent acts or omissions on the part of others; but, in the absence of anything which gives, or should give notice to the contrary, he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person.” Foreseeability of injury to another is an essential element of actionable negligence. Allen v. Sharp, 267 N.C. 99, 147 S.E. 2d 564; Pinyan v. Settle, 263 N.C. 578, 139 S.E. 2d 863. Since no injury to a motorist using the highway could result from the parking of the defendant’s unlighted equipment 15 feet west of the barricade unless the motorist ran through the barricade, which, in turn, could not be foreseen unless the Highway Commission failed to perform its duty to give adequate warning of the presence of the barricade, which duty it had assumed, the plaintiff’s evidence fails to show actionable negligence by the defendant in so parking its equipment, and the judgment of nonsuit was properly entered. Affirmed.