Spivey v. Walden

MORRIS, Judge. Plaintiff’s first assignment of error concerns the submission of the issue of contributory negligence to the jury. The plaintiff argues that even though there might have been evidence of contributory negligence, there was not sufficient evidence of proximate cause to permit the issue to be submitted to the jury. We find no merit in this contention. Proximate cause has been defined by our courts as “ ‘a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence’ could have reasonably foreseen that some injury or harm would probably result from his act or omission under all the facts as they existed. (Citations omitted.)” Boone v. R. R., 240 N.C. 152, 81 S.E. 2d 380 (1954). In Bass v. McLamb, 268 N.C. 395, 150 S.E. 2d 856 (1966), Justice Branch quoted from Saunders v. Warren, 267 N.C. 735, 149 S.E. 2d 19 (1966), as follows: “ ‘ “ The operator of a standing or parked vehicle which constitutes a source of danger to other users of the high [320] way is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic of the presence of the standing vehicle, and such duty exists irrespective of the reason for stopping the vehicle on the highway. So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and failing to give such warning may constitute negligence ...” 60 C.J.S., Motor Vehicles, § 325, pp. 779, 780; Mullis v. Pinnacle Flour & Feed Co., 152 S.C. 239, 149 S.E. 329.’ ” Bass v. McLamb, supra, at 397, 398. There was sufficient evidence of proximate cause in this case for submission of the issue of contributory negligence to the jury. Plaintiff next contends that the trial court erred in applying the provisions of G.S. 20-161 to the facts in this case. He submits that the applicability of the statute on the issue of contributory negligence was too speculative to be left to the jury. The pertinent portion of G.S. 20-161 reads as follows: “(a) No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled portion of any highway or highway bridge unless the vehicle is disabled to such an extent that it is impossible to avoid stopping or temporarily leaving the vehicle upon the paved or main traveled portion of the highway or highway bridge.” We agree with plaintiff that G.S. 20-161 is not violated when the operator of a motor vehicle stops momentarily upon the streets or highway in order to undertake another movement and that the words “park” and “leave standing” as used in the statute do not include “a mere temporary or momentary stoppage on the highway for a necessary purpose when there is no intent to break the continuity of travel”. Faison v. Trucking Co., 266 N.C. 383, 390, 146 S.E. 2d 450 (1966). In fact, we note that the judge so charged the jury in stating defendant’s contention that G.S. 20-161 was applicable in this case. However, we conclude that based upon all the evidence the jury could reasonably find that when Mrs. Spivey stopped her automobile she intended to park or leave it standing a sufficient length of time to break the continuity of travel. There was no error in [321] submitting the question of whether the statute was applicable in this-case to the jury. Plaintiff’s final contention is that the trial court erred when it instructed the jury that the plaintiff’s intestate was guilty of negligence when she stopped on the highway if there was no necessary purpose to the stopping. This contention also is without merit. The portion of the charge to which the plaintiff objects was in fact only a statement by the trial judge of one of the defendant’s contentions. Defendant alleged in her answer and argued to the jury that Mrs. Spivey violated G.S. 20-161 and that such violation constituted contributory negligence on her part. She further contended there was nothing from the evidence indicating Mrs. Spivey1 stopped for any necessary purpose. We find the court accurately stated the defendant’s contentions. This assignment of error is overruled. No error. Chief Judge Brock and Judge Martin concur.