Hooks v. Hudson, 237 N.C. 695 (1953)

May 6, 1953 · Supreme Court of North Carolina
237 N.C. 695


(Filed 6 May, 1953.)

Automobiles §§ 8d, 18a, 18b—

xlllegations to the effect that defendant’s car was parked in the daytime on the hardsurface of the highway and left unattended in violation of statute, that plaintiff was forced to stop his car behind the parked car because of on-coming traffic, and that another car then rammed into the back of plaintiff’s car, resulting in the injury in suit, is held insufficient to state a cause of action against defendant, and defendant’s demurrer was properly sustained.

Appeal by plaintiff from Garr, J., at September Term, 1952, of Columbus.

Civil action to recover for personal injuries and property damage alleged to have resulted from actionable negligence of defendant in parking his family-purpose automobile operated by his son, and leaving it parked on paved portion -of highway, heard in Superior Court upon demurrer of defendant chiefly upon the ground that the allegations set forth in the complaint fail to state a cause of action against defendant in that *696it appears upon tbe face of tbe complaint that there is no causal connection between tbe parking of defendant’s automobile on tbe bigbway and tbe collision of wbicb plaintiff complains.

Tbe matters and things of wbicb plaintiff complains, as set out in bis complaint, occurred about 11 o’clock on Saturday morning, 22 December, 1951. Tbe scene was at a point on Highway No. 301 about two and a half miles south of Weldon, North Carolina. Plaintiff, accompanied by bis wife, and driving bis 1951 4-door Cadillac sedan, was traveling north on this bigbway. Another automobile, being driven by E. E. Holding, was preceding plaintiff. Tbe family-purpose automobile of defendant, being operated by bis son, “bad parked and was parked” unoccupied and entirely on tbe paved portion in tbe right lane of tbe bigbway, — the left wheels being five and a half inches from tbe center line. Numerous motor vehicles were coming from tbe opposite direction, so that tbe forward progress of tbe Holding automobile, and that of plaintiff was “completely impeded and obstructed.” “Due to these causes and circumstances” tbe automobile driven by Holding “bad been forced to stop immediately behind tbe said automobile of defendant,” and “plaintiff’s automobile was forced to stop immediately behind tbe automobile being driven by E. E. Holding and plaintiff’s automobile bad been stopped at said point approximately thirty seconds when be was struck on tbe rear by an automobile being driven, as be is informed and believes, by one Lester M. Council, Jr., and as a result of being struck from tbe rear in said manner plaintiff’s automobile was burled and forced forward into tbe automobile (Holding’s) immediately in front . . .,” causing damages at least to tbe extent of $2,300.00 to bis, plaintiff’s, automobile, and personal injury to him.

Tbe acts of negligence as set out in tbe complaint and charged by plaintiff against defendant, in summary, are that defendant unlawfully and negligently parked bis automobile upon tbe paved portion of tbe bigb-way so as to obstruct vehicular traffic, etc. And it is alleged in tbe complaint that tbe negligence alleged against defendant was “tbe sole and proximate cause of said collision and tbe resulting damages to plaintiff’s automobile and . . . personal injuries sustained by tbe plaintiff.”

Upon bearing on tbe demurrer of defendant, tbe court, being of opinion that tbe complaint does not state a cause of action against defendant, entered judgment sustaining tbe demurrer.

Plaintiff excepts thereto, and appeals to Supreme Court, assigning error.

Po.well •& Powell and D. Jach Hoolcs for plaintiff, appellant.

Varser, McIntyre <& Henry for defendant, appellee.

*697Wiktbornje, J.

Did the judge of Superior Court err in sustaining defendant’s demurrer to the complaint? This is the only question presented on this appeal.

In this connection, the controlling principles have been restated and applied in the recent cases of McLaney v. Motor Freight, Inc., 236 N.C. 714, 74 S.E. 2d 36, and Hollifield v. Everhart, ante, 313, 74 S.E. 2d 706. In each of these cases, similar in factual situation to the case in hand, the sufficiency of the allegations of the complaint to state a cause of action, was challenged by demurrer upon grounds similar to those on which defendant here relies. And what is said there is applicable here. Further restatement would be merely repetitious. Hence on authority of these cases, the judgment below is