McKinnon v. Howard Motor Lines

228 N.C. 132

• Court: Supreme Court of North Carolina
• Decided: November 5, 1947
• Status: Published

Opinion

Stacy, C. J.

Tbe question for decision is whether tbe plaintiffs’ case is uprooted by tbe contributory negligence of tbe driver of tbe McKinnon car as shown by bis own testimony and tbe undisputed facts appearing of record. A careful perusal of tbe evidence impels an affirmative answer.

There is ample evidence tending to show negligence on the part of the defendants in operating their equipment on the highway in the nighttime without rear lamps as required by Gf. S., 20-129. There is also evidence of contributory negligence on the part of the driver of plaintiff’s car which bars recovery. Sibbitt v. Transit Co., 220 N. C., 702, 18 S. E. (2d), 203; Pike v. Seymour, 222 N. C., 42, 21 S. E. (2d), 884; Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 147; Atkins v. Transportation Co., 224 N. C., 688, 32 S. E. (2d), 209.

Conceding the negligence of the defendants in failing to display rear lights on their slowly moving or stalled truck, nevertheless the contributory negligence of Robert H. McKinnon is manifest from his own testimony and the physical facts appearing of record. He says that he ran in a “blinded area” for two or three seconds, at a speed of 35 miles an hour and for a distance of 100 feet — other witnesses put it at 100 yards or 400 feet — when be was completely blinded and could see nothing in front of him except the right-hand edge of the road. Both his vision and his prevision seem to have failed him at one and the same time. Such is the stuff of which wrecks are made. The conclusion seems inescapable that the driver of tbe McKinnon car omitted to exercise reasonable care for his own and bis companion’s safety, which perforce contributed to the catastrophe. This defeats recovery in the instant action. Austin v. Overton, 222 N. C., 89, 21 S. E. (2d), 887; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Caulder v. Gresham, 224 N. C., 403, 30 S. E. (2d), 312. Young McKinnon’s negligence need not have been the sole proximate cause of the injury to bar recovery, because “contributory negligence” ex vi termini signifies contribution rather than independent or sole cause. Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897; Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. See S. v. Eldridge, 197 N. C., 626, 150 S. E., 125. It is enough if the plaintiff’s negligence contribute to the injury as a proximate cause, or one of them. Tarrant v. Bottling Co., 221 N. C., 390, 20 S. E. (2d), 565; Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608; Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564. Tbe plaintiff may not recover, in an action like tbe present, wben bis negligence concurs witb tbe negligence of tbe defendant in proximately producing tbe result. Davis v. Jeffreys, 197 N. C., 712, 150 S. E., 488; Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672.

Tbe cases cited by plaintiffs, Hobbs v. Drewer, 226 N. C., 146, 37 S. E. (2d), 121; Cummins v. Fruit Co., 225 N. C., 625, 36 S. E. (2d), 11, are distinguishable by reason of factual differences.

Tbe correctness of tbe ruling in withdrawing tbe allegation of unlawful parking is not presented for review. Tbe plaintiffs won below and they are not appealing.

Tbe motion for judgment of nonsuit should have been allowed. Elder v. R. R., 194 N. C., 617, 140 S. E., 298.

Eeversed.

Seawell, J., dissents.