Babbs v. Eury, 206 N.C. 679 (1934)

June 20, 1934 · Supreme Court of North Carolina

206 N.C. 679

WALTER BABBS v. HOMER L. EURY.

(Filed 20 June, 1934.)

1, Automobiles C e — More securely fastening red light carried on rear of vehicle in addition to regular lights held not “repair.”

Tbe stopping of a truck on tbe bard-surface portion of a highway in order to more securely fasten a red light carried by the truck in addition to the regular tail lights upon its rear is not a stopping of the truck on the highway to repair such vehicle, and evidence disclosing such action by plaintiff does not warrant the granting of defendant’s motion as of nonsuit for contributory negligence on the ground that the evidence showed a violation by plaintiff of section 10 of the ordinances of the State Highway Commission prohibiting the repairing of a motor vehicle upon the highway.

2. Same — Evidence held not to disclose violation, as matter of law, of regulations relating to parking vehicles on highway.

Evidence disclosing that plaintiff stopped his truck upon a portion of the hard surface of the highway at a place where the highway was straight and where the lights of a filling station shone, that the lights on the truck, including the required tail lights, were burning, and that about fifteen feet of hard surface highway was open for the passage of cars to the left of the truck, and that the truck was not stopped for the purpose of repairing same is held, not to show the violation by plaintiff of any statute designed for the preservation and protection of life or limb, sections 10 and 11 of the ordinances of the State Highway Commission, N. C. Code, 2621(72), and defendant’s motion as of nonsuit on the ground that defendant’s evidence disclosed contributory negligence as a matter of law was properly refused.

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

Civil action, before Warlich, J., at January Special Terra, 1934, of Mbciclenbueg.

. Tbe plaintiff alleged and offered evidence tending to show that on or about 10 February, 1933, be was an employee of tbe Highway Commission and was assisting in tbe operation of a truck on tbe Ooncord-Cbarlotte Highway known as No. 15, running through Newell. Tbe highway was covered with snow and sleet, and tbe plaintiff and another employee named Curtis Long had attached a snow plow to the front of the truck in order to remove sleet and snow. At about seven o’clock at night they stopped the truck in front of Newell’s store. The plaintiff said: “When Mr. Long stopped the truck I got out on the right-hand side away from the highway. . . . When the truck stopped it was about two-thirds off the hard- surface to the right. The hard surface there is eighteen feet wide. The truck is about five and one-half feet wide. . . . The road is straight there about one-half mile in each direction. . . . Mr. Long stopped the truck to fix one of the lights. This light was not one that was bought on the truck. It was an extra red light we carry when we drag snow. It was on behind right over the stop light. Two lights on the rear of the truck were burning. . . . The lights on the rear of the truck when it stopped were burning. The red lantern which we were going to fix had been jumping up and down. It had a red globe that gave a red light. ... I was standing right behind the truck. I wa's on the hard surface. I was standing about two feet back of the lights. I saw a car coming from Charlotte going toward Concord. I saw the car that hit the truck before it got to me. Mr. Long said, 'Look out, they are going to hit you.’ The lights at the filling station were burning. My truck was right opposite the filling station. There were about fifteen lights there. . . . We stopped in front of the filling station because we could see better. We bad plenty of light there and everybody else could see. . . . There was about six feet of hard surface on the right side between the parked truck and the center of the pavement. There was nine feet of hard surface to the left of the center of the pavement. . . . The car knocked the truck forty-five or fifty feet I reckon. . . . At the time this car hit the truck I didn’t see any ear coming from Concord toward Charlotte in sight. I could see down the highway a half mile. The car hit me. It hit me on the hip here. It broke my hip. It knocked me down the road there. . . . My opinion is that the speed the car was making was fifty-five or sixty miles. I didn’t get up when it knocked me down. I couldn’t. . . . Mr. Eury, the defendant, was the one who hit me. He came to the hospital to see me. I can’t hardly remember what he told me, I was suffering so. We had stopped just about two minutes. Mr. Long had come to the store to get a string or something to tie the lantern with. He came back without one and we decided to fasten it down with a little old chain we had there.” There was other evidence corroborating the testimony of plaintiff.

The defendant testified that at the time of the accident he was traveling between thirty and thirty-five miles per hour. He said: “I did not see any lights on the truck as I approached it. When I approached the truck I was, I guess, thirty-five or forty feet from it, and at that time I didn’t see any lights. I never saw any lights on the truck before the collision. . . . The truck was on the pavement. As near as I could tell all of it was on the pavement. On the left side of the truck on the pavement a car was approaching me, coming from toward Concord. It looked like that car was about the same distance I was from the truck. I didn’t have time to go' by it. . . . I applied my brakes. I didn’t attempt to turn my car in either direction. If I had turned to the left, I would have hit the car coming. If I had pulled to the right, I would have hit whatever was standing at the right of the truck. I did not see Babbs until after he was hit.” The defendant offered in evidence sections ten and eleven of the ordinance of the State Highway Commission, which are as follows: “Section 10. It shall be unlawful to repair any motor vehicle upon the used or traveled portion of any State Highway.” “Section 11. It shall be unlawful to leave any vehicle or other obstruction whatsoever, standing upon a State Highway at night, either on the traveled portion thereof or on the shoulders, unless the same shall be protected by lights making it plainly visible; and in no event shall such vehicle be left standing upon the highway for a period longer than ten (10) hours.”

The court submitted issues of negligence, contributory negligence and damages. These issues were answered in favor of the plaintiff and the verdict awarded damages in the sum of $6,500.

From judgment upon the verdict the defendant appealed.

A. M. Butler, G. T. Carswell and Joe W. Bruin for plaintiff.

C. H. Gover and Wm. T. Covington, Jr., for defendant.

Brogden, J.

Tbe defendant asserted that the motion for nonsuit should have been granted for the reason that the evidence of the plaintiff disclosed that at the time of his injury he was undertaking “to repair” a truck on the highway in violation of section 10 of the ordinances of the Highway Commission. The plaintiff asserts that the mere tying of a red lantern on the rear of a truck is not a work of “repair.” The textbooks and decided cases have usually construed the term, “repair” to mean restoration to original condition as nearly as possible. Manifestly, in the ordinary transactions of life the word “repair” presupposes a defect, imperfection or deterioration in the truck. The plaintiff undertook to more securely fasten a red lantern, which, of course, involved no idea of defect.

In reference to swinging gates, this Court has held that “a change is not a repair.” Knight v. Foster, 163 N. C., 329.

Consequently, there is no evidence that the plaintiff at the time of his injury was violating any statute designed for the preservation and protection of life or limb. See C. S., Michie’s Code, 1931, 2621(72).

There are other exceptions to the charge and to the failure to give requested instructions, but a careful examination of the record does not produce the conclusion that error was committed in applying the law to the facts. Indeed, the cause presents in its essential aspects, only controverted issues of fact, and such issues have been brought to rest by the verdict of the jury.

Affirmed.

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