Staples v. Carter

MallaRd, C.J. Plaintiff contends that the trial court committed error in leaving to the jury the question of whether the wrecker was parked or left standing on the highway in violation of G.S. 20-161. Plaintiff contends that the trial court should have instructed the jury as a matter of law that under all the facts in this case the wrecker was-parked or left standing in violation of G.S. 20-161. The pertinent parts of G.S. 20-161 read as follows: “(a) No person shall park or leave standing any vehicle,, whether attended or unattended, upon the paved or improved! or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway:” In the case of Montford v. Gilbhaar, 265 N.C. 389, 144 S.E. 2d 31 (1965), cited by appellant, it is said: “Plaintiff’s exception to the judgment of nonsuit was well taken. In our opinion the evidence that defendants left the wrecker standing on the highway in such manner that the wrecker and the cable attached blocked the entire highway, the existing circumstances affected visibility of the cable, and no meaningful warning was given that the highway was completely obstructed and traffic, to avoid collision, would have to come to a complete stop, makes out a prima facie case of actionable negligence on the part of defendants. G.S. 20-161.” When a prima facie case is shown by the evidence or admission, the trial court, nothing else appearing, should submit the case to the jury. In the case of Vance v. Guy, 224 N.C. 607, 31 S.E. 2d 766 (1964), it is said: [267] “The defendants were not compelled to go forward or lose their case, simply upon a prima facie showing by the plaintiff. Speas v. Bank, 188 N.C., 524, 125 S.E., 398. A ‘prima facie case’ means and means no more than evidence sufficient to justify, but not to compel an inference of liability, if the jury so find. It furnishes evidence to be weighed, but not necessarily to be accepted by the jury. It simply carries the case to the jury for determination, and no more.” We are of the opinion and so hold that the evidence in this case required the submission of the case to the jury but did not establish as a matter of law that a violation of G.S. 20-161 (a) and G.S. 20-161.1, if any, was a proximate cause of the collision, and the trial judge properly submitted to the jury the question of whether the wrecker was parked or left standing in violation of the statutes, and if so, whether such was a proximate cause of the collision. See Saunders v. Warren, 264 N.C. 200, 141 S.E. 2d 308 (1965); Chandler v. Bottling Co., 257 N.C. 245, 125 S.E. 2d 584 (1962); Pollock v. Chevrolet Co., 1 N.C. App. 377, 161 S.E. 2d 642 (1968). Plaintiff’s last contention is that the trial court committed reversible error in instructing the jury as to the effect of G.S. 20-161.1 upon the conduct of the operator of the wrecker. G.S. 20-161.1 reads as follows: “Regulation of night parking on highways. • — ■ No person parking or leaving standing a vehicle at night on a highway or on a side road entering into a highway shall permit the bright lights of said vehicle to continue burning when such lights face oncoming traffic.” Plaintiff alleged (1) the wrecker was parked and left standing without leaving at least 15 feet of clear and unobstructed width upon the main-traveled portion of the roadway in violation of G.S. 20-161; (2) the wrecker was parked and left standing at night on a public road with its bright lights burning in the face of oncoming traffic, thereby violating G.S. 20-161.1; and (3) there was failure to give adequate and reasonable warning to approaching traffic that the road was blocked, thereby violating the applicable common law duty. The evidence was conflicting with respect to whether the bright lights were burning on the wrecker. Plaintiff’s evidence tended to show that the wrecker’s bright lights were burning and defendants’ evidence tended to show that they were not. The evidence for the plaintiff tended to show that there were no lights on the wrecker other than the bright headlights. The defendants’ evidence tended to show [268] that all of the emergency lights on the wrecker were burning and flashing, and the headlights were on dim. Plaintiff’s evidence in this case also tended to show that the car in which she was riding was going about 30 miles per hour in a 35 mile per hour speed zone. Defendants’ evidence tends to show that the Staples car was traveling at a speed of 50 miles per hour, and that before the collision it ran off onto the shoulder of the road, struck a mail box, struck the disabled vehicle of Goins and knocked it 25 or 30 feet and then continued on to the left side of the highway and struck a bank and stopped. We have carefully examined the charge and all of the assignments of error and exceptions brought forward in plaintiff’s brief and are of the opinion that no prejudicial error is made to appear. Affirmed. Bbitt and PakiceR, JJ., concur.