Royal v. McClure

92 S.E.2d 762 (1956)

244 N.C. 186

Elizabeth Price ROYAL, Administratrix of Leon Ernest Royal, Jr., v. Evelyn Louise McCLURE, Ernest R. Mitchell and wife, Mrs. Ernest R. Mitchell, Carl S. Lennon, B. S. Lennon, L. D. Marks, Mrs. J. M. Sauls, Esmer E. Ward, and Henry Nance.

No. 601.

Supreme Court of North Carolina.

May 23, 1956.

*764 Powell & Powell, Whiteville, and L. J. Britt, Lumberton, for plaintiff, appellant.

Varser, McIntyre & Henry, Lumberton, for defendant L. D. Marks, appellee.

Ellis E. Page, Lumberton, for defendant Mrs. J. M. Sauls, appellee.

BOBBITT, Justice.

Only the relevant facts alleged by plaintiff are to be considered. Pressly v. Walker, 238 N.C. 732, 78 S.E.2d 920.

No reason is alleged as to why the McClure car (first in line) stopped. The driver may have reached one of those (alleged) "points" where her vision was "altogether destroyed." However that may be, whether she was negligent in so stopping under the facts alleged is not before us on this appeal.

When the McClure car stopped, the other drivers (Mitchell, Lennon, Marks, Sauls) had only two alternatives, either to stop or to collide with the car immediately ahead. In stopping, it would seem (1) that they made the wise choice, and (2) that they were cautious and alert in their manner of driving.

As to appellees, there is no allegation that either of them followed the car ahead more closely than was reasonable and prudent. The allegation is that each stopped immediately behind such car. G.S. § 20-152 has no bearing. There is no prescribed distance within which one car must *765 stop behind another stopped car. Moreover, the fact that these cars stopped in succession, one immediately behind the other, has no causal relation to collisions occurring when the Ward car crashed into the Sauls car and when the Nance car crashed into the Ward car. It is noted that there is no allegation that the Marks car was struck by or collided with any other car.

Appellant contends that Bumgardner v. Allison Fence Co., 236 N.C. 698, 74 S.E.2d 32, is authority for her position, "especially in regard to" defendant Sauls. The cited case is readily distinguishable. There the facts alleged, inter alia, were that an unlighted truck, on which there was a pipe extending 9 feet and 3 inches beyond the end of the truck body, had been parked for the night in the darkness, shortly before 6:00 p. m. on the 3rd of December, near the bottom of a dip on a city street.

While plaintiff alleges that appellees parked their cars on the highway, the facts alleged disclose that appellees stopped their cars on the highway to avoid collision with the cars immediately ahead. G.S. § 20-161 has no reference to "a mere temporary stop for a necessary purpose when there is no intent to break the continuity of the `travel'." Barnhill J. (now C. J.), in Peoples v. Fulk, 220 N.C. 635, 18 S.E.2d 147, 148. See Skinner v. Evans, 243 N.C. 760, 92 S.E.2d 209, in which Winborne, J., cites earlier cases.

Appellees, under plaintiff's allegations, did not park but stopped temporarily for a necessary purpose, with no intent to break the continuity of their travel. Immediately after they stopped, so plaintiff alleges, the Ward car, being operated "at a dangerous rate of speed into said smoke and fog," collided with the Sauls car; and immediately thereafter the Nance car, being operated "at a high, dangerous and excessive rate of speed into said smoke and fog," collided with the Ward car. Under these circumstances, it does not appear that appellees had time to park on the shoulder if they had attempted to do so. Moreover, assuming the shoulder of the road afforded ample space for parking, if appellees were required to stop at one of those (alleged) "points" where their vision was "altogether destroyed" they could have seen the shoulder no better than the road, if as well.

Under a well established rule, appellees were under no duty to anticipate that the drivers of other cars overtaking them would so operate their cars that they could not stop them after they observed or should have observed the presence of appellees' cars on the highway. Skinner v. Evans, supra. Indeed, it would seem reasonable that appellees should anticipate that such drivers would do as they had done, that is, drive with the same care and caution they had exercised.

Appellant emphasizes the allegations that each appellee drove from a place of safety on said highway into a place in which he had little or no vision in disregard of his own safety and the safety of others. But the facts alleged are that appellees drove "for some distance" upon that portion of the highway affected by the smoke and fog; and that, in doing so, they were able to see the cars ahead sufficiently to enable them, by keeping a proper lookout and by keeping their cars under proper control, to stop when necessary without collision or injury to others on the highway.

The facts alleged fail to disclose that appellees proceeded otherwise than in a slow and careful manner. When the car in front stopped, each appellee stopped. Their actions reflect close observations and careful driving. The presence of their cars on the highway, operated in a lawful manner, under control, on the right and proper side of the highway, and stopping when occasion required, must be regarded as circumstances of the ensuing collisions rather than as a proximate cause thereof. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383, and cases cited.

We refrain from discussing questions relating to the negligence of defendants who are not parties to this appeal. Suffice it to say, the allegations of fact *766 made by plaintiff, liberally construed in her favor, are insufficient to state a cause of action for actionable negligence as to defendants Marks and Sauls. Hence, the judgment sustaining their demurrers is

Affirmed.

DEVIN, J., took no part in the consideration or decision of this case.