Lawing v. Landis

124 S.E.2d 877 (1962)

256 N.C. 677

Loyd L. LAWING, Administrator of the Estate of Thomas Wesley Weaver, Deceased, v. T. E. LANDIS and C. E. Landis, Trading as Landis Motors; Henry Click Truitt; P. & G. Chair Company, Inc.; Grady Carroll, Jr.; Edna Wrenn Scarlett; William Lafayette Abernethy; Houston Donnell Havnear; Abernethy's, Inc.; and Edna Wrenn Scarlett, Administratrix of the Estate of Russell Wayne Scarlett, Deceased. John E. HOUSER, Administrator of the Estate of Douglass Evon Houser, Deceased, v. T. E. LANDIS and C. E. Landis, Trading as Landis Motors; Henry Click Truitt; P. & G. Chair Company, Inc.; Grady Carroll, Jr.; Edna Wrenn Scarlett; William Lafayette Abernethy; Houston Donnell Havnear; Abernethy's, Inc.; and Edna Wrenn Scarlett, Administratrix of the Estate of Russell Wayne Scarlett, Deceased.

No. 310.

Supreme Court of North Carolina.

April 11, 1962.

*879 Richard A. Williams, Martin C. Pannell, Newton, for plaintiff Loyd A. Lawing, Administrator, appellant.

M. T. Leatherman, Don M. Pendleton, Lincolnton, for plaintiff John E. Houser, Administrator, appellant.

Patton & Ervin, Morganton, for defendant Edna Wrenn Scarlett, Individually and Edna Wrenn Scarlett, Administratrix, appellee.

Patrick, Harper & Dixon, by Charles D. Dixon and Bailey Patrick, Hickory, for defendants T. E. Landis and C. E. Landis, Trading as Landis Motors, and Henry Click Truitt, appellees.

Emmett C. Willis, James C. Smathers, Hickory, for defendants William Lafayette Abernethy, Houston Donnell Havnear, and Abernethy's, Inc., appellees.

HIGGINS, Justice.

The record, consisting of almost 300 pages, indicates the trial was carefully conducted both by the presiding judge and the participating attorneys. The judgments of nonsuit as to the Chair Company and its agent, Carroll, were entirely proper. In fact, the plaintiffs do not challenge the propriety of these judgments.

The plaintiffs do contend, however, the court committed prejudicial error by "(1) giving all the defendants the benefit of a charge on sudden emergency, and (2) assuming the defendants were entitled to the sudden emergency charge, did the court properly instruct the jury as to what facts would constitute the emergency."

The evidence disclosed a fog of such extreme density as to obscure or almost blot out lights of a motor vehicle except for a very few feet. This condition existed for only a very short distance over or near a stream on an otherwise clear night. A few minutes before, as the wrecker passed over the stream on the way to the disabled truck, there was no fog whatever on the highway. On the return, the driver entered the fog, reduced speed to 10 to 15 miles per hour, and had proceeded for 100 to 150 yards when slightly bumped by the Chevrolet, and immediately thereafter rammed by the station wagon. Evidence of unlawful speed on the part of either vehicle was lacking. Did not the presence of these three vehicles at the same place, at the same time, all driving west in thefog, require the court to charge the jury with respect to a driver's duty in a sudden emergency?

The court charged:

"Each defendant contends on his own behalf that he was faced with a sudden emergency that suddenly arose; that he moved into this fog without knowing or without any means of knowing its intensity; and that after being in there, that he used due care to get out under all the circumstances and used due care in the operation of the vehicle under all the circumstances. So, under this principle of sudden emergency, that is if you should find that the defendant was confronted with a sudden emergency and, taking each defendant separately in considering the attendant circumstances under which he was operating his automobile that defendant would not be held to the same degree of care as in ordinary circumstances, but only to that degree of care which an ordinarily prudent person would use under similar circumstances. The standard of conduct required in an emergency, as elsewhere, is that of a prudent person; but the Court instructs you, however, that this principle is not available to a defendant, that if such defendant, by his own negligence, has brought about or contributed to that emergency. One who acts in an emergency is not held by law to the wisest choice of conduct, but only to such choice as a person of ordinary *880 prudence, similarly situated, would have made or used."

The charge is sustained by many decisions of this Court, among them the following: Sparks v. Phipps, 255 N.C. 657, 122 S.E.2d 496; Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838; Bundy v. Belue, 253 N.C. 31, 116 S.E.2d 200. See also, Strong's Index, Vol. 3, Negligence, § 3, p. 445. The charge covers all essential aspects of the case as presented by the pleadings and the evidence. The jury whose duty it was to find the facts, has exonerated all defendants. A careful review and examination of the record fail to disclose any reason why the findings should be disturbed.

No error.