Harris Express, Inc. v. Jones

73 S.E.2d 301, 236 N.C. 542, 1952 N.C. LEXIS 593

• Court: Supreme Court of North Carolina
• Decided: November 26, 1952
• Docket: 526
• Status: Published

Opinions

'WiNbobNe, J.

Testing the evidence offered by plaintiff and so much of defendant’s evidence as is favorable to plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, in this case, Rice v. Lumberton, 235 N.C. 227, 69 S.E. 2d 543, it may he fairly doubted that there is shown any evidence of actionable negligence on the part of defendant. Morris v. Transport Co., 235 N.C. 568, 70 S.E. 2d 845.

Here, as in the Morris case, the uncontradicted statement of defendant, offered in evidence by plaintiff through its witness, Patrolman Anthony, and explained by the testimony of defendant, refutes the theory of “a parking” of defendant’s tractor-trailer at the place of the collision in question, within the meaning of the statute G.S. 20-161 (a) as amended by Chap. 165 of 1951 Session Laws of North Carolina. (See discussion in the Morris case.)

Likewise as to permitting the tractor-trailer of defendant to be on the highway without lights. The factual' situation here is so similar to that in the Morris case that what is said there in this respect is applicable and appropriate here.

But if it be conceded that defendant was negligent in some respect alleged in the complaint, it is manifest that the driver of plaintiff’s tractor-trailer was negligent in the operation of it, and that such negligence was the proximate cause, or at least one of the proximate causes of the collision and property damage of which complaint is here made.

The ease comes within and is controlled by the principles enunciated and applied in Weston v. R. R., 194 N.C. 210, 139 S.E. 237, the Morris case, supra, and the list of cases cited in the Morris case at pp. 576-577, as well as in the case of Morgan v. Cook, ante, 477. Compare Hammett v. Miller, 227 N.C. 10, 40 S.E. 2d 480, and Clark v. Lambreth, 235 N.C. 578, 70 S.E. 2d 828.

Hence the judgment below is

Affirmed.