#### ALBERT NEWTON MORGAN v. ERNEST ELI COOK and SOUTHERN OIL TRANSPORTATION COMPANY.

(Filed 19 November, 1952.)

Automobiles §§ 8(I, 18h (3) — Evidence held to disclose contributory negligence as matter of law on part of motorist hitting tractor across his lane of travel.

Plaintiff driver’s evidence tended to show that as he approached the scene on a three lane highway he was blinded by the lights of a tractor in the middle lane some 1,400 feet away, that notwithstanding he continued *478in his right-hand lane at 30 or 35 miles per hour and did not see the trailer which was across his lane of travel until he was within twelve or fifteen feet thereof, that he immediately put on his brakes but was unable to stop before his windshield crashed into the side of the trailer. *Held,:*Plaintiff’s evidence discloses contributory negligence barring recovery as a matter of law.

Ervin and Johnson, JJ., dissent.

Valentine, J., dissenting.

Appeal by plaintiff from *Sharp, Special Judge,*June Term, 1952, of RANDOLPH.

Civil action to recover for damages to plaintiff’s automobile and for personal injuries sustained on Highway No. 220 in Randolph County, when he ran his automobile into the side of a tank tractor-trailer owned by the Southern Oil Transportation Company, and operated at the time by an employee, Ernest Eli Cook. It is alleged the damages were caused by the negligence or default of the defendants.

The plaintiff who at the time of the collision lived in North Asheboro and was employed as a foreman in the mill of Carthage Fabrics in Carthage, testified as follows : “On December 21, 1950 I had started to work. I work on the third shift, night-time. I have to be there quarter of twelve. Lewis Cockman, my brother-in-law, was with me. He worked down there with me at the time. I left the house ten minutes ’til 10; . . . The overpass, 49 crosses 220, which is about 2800 feet from where the wreck happened; there is a rise in the road; after I went over the high place in the road, 220, I saw bright lights, two bright lights up in the middle lane. There are three lanes in 220. They are marked; broken lines, white lines, all the way through. The center lane is reserved for lefthand turn and through traffic. There are two outside lanes. The traffic with lights were passing on the right coming north. I dimmed my lights on dim three or four times. This light was sitting in the center lane; meeting me; it was awful bright; almost like a locomotive. I tapped my brakes a few times, slowed down pretty slow, to see what he was doing. He was in the center lane, and two headlights. ... As I got up even with the truck, the truck was sitting up, I didn’t see anything at all. I tapped the gas to go on through, ... I got up 12 or 15 feet of the trailer I saw a bulk. It was a grayish color. ... I hit the brakes for all it was worth; ran up under there, hit in the center of the windshield, knocked the glass out, crashed glass on the side. . . . The width of the asphalt top of 220 is 35 feet. The tank was way over the entire righthand lane, covered the shoulder and all. The tractor part was up in the middle lane, headed north. . . . After I passed the bright light, my light being on dim, it seemed it was shining under the pass (tank), and the lights *479on tbe trailer, . . . There could have been lights on the back and front, but they were shining the other way, and the lights on the tractor, clearance lights, were shining back this way. ... I was 12 or 15 feet from the tank when I was first able to see it. The tanker is about four and a half feet from the ground. My automobile went underneath it. It hit the windshield, right in the center. I applied my brakes after I saw the tanker. I skidded my wheels five or six feet. The collision busted the body of my automobile all to pieces on it; all the glass, knocked it out, windshield all out. There were no flares or lights stationed anywhere . . . to indicate that this tank was across the road. Not anything at all. . . . I saw these lights in the center lane for about 1400 feet. They didn’t move. The traffic was heavy in the other lane. ... I called on him three or four times with the dimmers trying to make him lower his lights. I wanted him to do that so I could see. They blinded me until I got by the glare; 12 or 15 feet before I saw it. I was just as good as blinded from the time I first saw the lights until I got 12 or 15 feet. No, I was not as good as blinded for 1385 feet. Not that much. Yes, I want the jury to believe that I was blinded until I got within 15 feet of the trailer part of the truck. ... I was going around 35 when I collided with the truck. When I first saw the headlight I tapped my brakes three or four times, slowed down ’til I got by the flare of the truck, the lights, and it looked clear to me ’til I looked under the trailer. I don’t know how many miles per hour I slowed down from the time I first observed the headlights until I had the collision. I had slowed down 30 or maybe 25. I will say I didn’t hit my brakes hard until 12 or 15 feet, of him, ... I knew the oil tanks were down in that part of town. I didn’t know they used the highway for a trucking turn. I knew several other oil companies have terminals there. I know that is a 35 mile per hour speed zone. . . . There wasn’t anything I could see in the way; the truck was making a left turn. The road was open as far as I could see.”

Lewis Coekman testified, “We were going down 220, and after we passed the overpass, a truck was sitting in the middle lane. We were making speed in the neighborhood of 35 miles per hour. I can’t say definitely that we at any time exceeded 35 miles per hour. . . . for a distance of 1400 feet I would say that the bright lights were staring me right in the face; it didn’t exactly blind me; you couldn’t see anything between you and that (truck). . . . the tanker was across the path. The bright lights on the truck prevented him from seeing the truck as he cut his lights from dim to bright. You still couldn’t see the tanker. He drove 1400 feet with that condition. He never brought his car to a stop. He never reduced his speed more than 10 miles per hour. When he got within 12 feet of the tanker he jammed on his brakes. He didn’t have time to stop. ... I was watching these lights all the time in the center *480lane. They never moved. I thought he would pull up into another lane. I didn’t know he was backing up.”

Both occupants of the plaintiff’s car received painful and serious injuries, and the plaintiff’s car was damaged to the extent of approximately $900.00.

Defendants moved for judgment as of nonsuit at the close of plaintiff’s evidence. The motion was overruled. It was renewed at the close of all the evidence and allowed. Plaintiff appeals and assigns error.

*Ottway Burton for plaintiff, appellant.*

*Smith & Walker for defendants, appellees.*

DeNNY, J.

The plaintiff drove his automobile more than 1,300 feet while he was blinded by the lights of the defendants’ oil truck. According to his evidence, while he was traveling this distance he was so “blinded” he could see nothing in his lane of traffic. Yet he proceeded until he got even with the truck, “tapped the gas to go on through,” and was within 12 or 15 feet of the tractor-trailer which was across his lane of traffic, before he “was first able to see it.” He says he was going about 35 miles an hour when the collision occurred.

Conceding the negligence of the defendants in the respects alleged, nevertheless the contributory negligence of the plaintiff is manifest from his own testimony. *Morris v. Transport Co.,*235 N.C. 568, 70 S.E. 2d 845; *McKinnon v. Motor Lines,*228 N.C. 132, 44 S.E. 2d 735; *Biggs v. Gulf Oil Corp.,*228 N.C. 774, 47 S.E. 2d 254; *Tyson v. Ford,*228 N.C. 778, 47 S.E. 2d 251; *Atkins v. Transportation Co.,*224 N.C. 688, 32 S.E. 2d 209; *Pike v. Seymour,*222 N.C. 42, 21 S.E. 2d 884; *Austin v. Overton,*222 N.C. 89, 21 S.E. 2d 887; *Dillon v. Winston-Salem,*221 N.C. 512, 20 S.E. 2d 845; *Sibbitt v. Transit Co.,*220 N.C. 702, 18 S.E. 2d 203; *Beck v. Hooks,*218 N.C. 105, 10 S.E. 2d 608; *Powers v. Sternberg,*213 N.C. 41, 195 S.E. 88; *Lee v. R. R.,*212 N.C. 340, 193 S.E. 395; *Weston v. R. R.,*194 N.C. 210, 139 S.E. 237.

In *McKinnon v. Motor Lines, supra,*Robert H. McKinnon testified 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 he was completely blinded and could see nothing in front of him except the right-hand edge of the road. While he was so blinded he ran into the rear of a slowly moving or stalled truck which was being operated without rear lamps as required by G.S. 20-129. On this evidence, *Stacy, C. J.,*speaking for the Court, said: “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 the McKinnon ear omitted to exercise rea*481sonable care for bis own and bis companion’s safety, wbicb perforce contributed to tbe catastrophe. Tbis defeats recovery . . .”

It is clear that tbe plaintiff in tbis action failed to exercise reasonable care for bis own and bis brotber-in-law’s safety under tbe existing circumstances, and that sucb failure contributed to tbeir personal injuries and tbe damage to plaintiff’s automobile. Tbis defeats tbe plaintiff’s right to recover.

Tbe ruling below in sustaining defendants’ motion for judgment as of nonsuit will be upheld.

Affirmed.

EeviN and Johnson, JJ., dissent.

ValeNtiNe, J.,

dissenting: I feel compelled to register my vote against tbe conclusion reached in tbe majority opinion. In my judgment, tbe plaintiff has made out a case wbicb entitles him to have a jury pass upon tbe issues of negligence, contributory negligence and damages, and my vote is to reverse tbe judgment of nonsuit and allow tbe jury to pass upon tbe issues of fact.

In addition to tbe evidence of tbe plaintiff quoted in tbe majority opinion, I find that in speaking of tbe tractor, tank-trailer and its environs at tbe time and immediately before tbe wreck, tbe plaintiff also said: “There were no flares or lights stationed anywhere along here to indicate that tbis tank was across tbe road. Not anything at all. There was no person there with any flashlights to indicate that; there wasn’t anything; those two bright headlights in tbe middle lane.” And again, “No, sir, I didn’t see a flashlight. There wasn’t any light there of any kind. If there bad been a light I could have seen it. If there bad been any lights on tbe truck I could have seen these lights. . . . There were no flares or anything else to warn me that tbe truck was parked. ... I called on him (tbe truck driver) three or four times with tbe dimmers trying to make him lower bis lights. . . . Tbe truck was a grayish color. It was a little dirty, nearly tbe color of tbe highway.”

From tbe testimony of a passenger in plaintiff’s ear, tbis appears: “Tbe trailer was high enough Morgan’s light was shining under it. . . . Mr. Morgan was gradually slowing down all tbe time. . . . Tbe tractor part of tbe truck trailer was parked straight up in tbe middle lane^ facing tbis way. It was a five wheel proposition, three axle proposition. I did not see any clearance lights or red lights at all on tbe tanker and none were burning on tbe tanker whatsoever. All I could see was two glaring headlights on tbe truck. . . . There wasn’t any light at all on tbe tanker to warn me that tbis tanker was in tbe way.”

*482Thus, from tbe plaintiff’s evidence, viewed in the light most favorable to him as we are required to do upon a motion for judgment as of nonsuit, *Powell v. Lloyd,*234 N.C. 481, 67 S.E. 2d 664, these logical inferences may be drawn: The plaintiff and his brother-in-law were en route on Highway 220 to the place of their employment at about 10 or 10:30 o’clock at night. Highway 220 is a three-lane highway paved to a width of 35 feet. As the plaintiff approached the point of collision, he encountered bright lights, resembling those of a locomotive, in the center lane. It developed that these bright lights were on the tractor part of the tractor-trailer combination belonging to the defendant, Southern Oil Transportation Company, and operated by its agent, Ernest Eli Cook. Plaintiff dimmed his lights several times in an effort to obtain the same courtesy from the driver of the other vehicle. The location was within a 35 mile zone and at no time did the plaintiff exceed 35 miles per hour. When his vision was interfered with by the tractor lights, he slackened his speed to from 25 to 30 miles per hour. He had passed the glare of the lights and was within 12 or 15 feet of the tank-trailer, when he discovered that the tank-trailer extended and formed a bridge entirely across plaintiff’s right side of the highway and the adjacent shoulder. The tank, suspended bridge-like over the road, was about 4% feet above the surface of the highway, so that the plaintiff’s dimmed lights cast their rays along the surface of the highway beneath the tank. The grayish colored tank blended with the surface of the highway and formed an obstruction that was difficult to see in the darkness. Plaintiff, upon seeing the tank, applied his brakes with full force, but was unable to stop and ran under the tank so that it hit the windshield of his automobile, resulting in great damage to the car and personal injury to the occupants of the ear. There were no lights of any kind on or around the tank-trailer to indicate its presence across the road, and no person there to warn motorists of impending danger. There is no question in my mind but that the plaintiff’s evidence makes out a case of negligence against the defendants. Whether upon this record the court was justified in concluding that contributory negligence appears from the plaintiff’s evidence as a matter of law is the problem involved in this appeal.

In my opinion, that question is settled by the case, *Rollison v. Hicks,*233 N.C. 99, 63 S.E. 2d 190, where the doctrine is fully stated as follows : “The test for determining whether the question of contributory negligence is one of law for the court or one of fact for the jury is restated in the recent case of *Bundy v. Powell,*229 N.C. 707, 51 S.E. 2d 307, where this is said: ‘Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. 1-139. ... A judgment of involuntary nonsuit cannot be rendered on the theory that the plea of contributory negligence has been established by the plaintiff’s evidence unless *483tbe testimony tending to prove contributory negligence is so clear that no other conclusion can be reasonably drawn therefrom. ... If the controlling or pertinent facts are in dispute, or more than one inference may reasonably be drawn from the evidence, the question of contributory negligence must be submitted to the jury.’ ” Measuring the plaintiff’s testimony by this standard, the question of contributory negligence becomes a matter of fact for the jury and not one of law for the court.

The plaintiff’s conduct is to be measured by the rule of the prudent man and whether his conduct at the time and immediately prior to the collision was that of a reasonably prudent man under the same or similar circumstances was a question of fact for determination by the jury. *Moore v. Iron Works,*183 N.C. 438, 111 S.E. 776.

In discussing the rule of the prudent man, *Barnhill,*J.; in *Rea v. Simowitz,*225 N.C. 575, 35 S.E. 2d 871, had this to say: “Hence the quantity of care required to meet the standard must be determined by the circumstances in which plaintiff and defendant were placed with respect to each other, and whether defendant exercised or failed to exercise ordinary care as understood and defined in our law of negligence is to be judged by the jury in the light of the attendant facts and circumstances.” Citing *Perkins v. Wood & Coal Co.,*189 N.C. 602, 127 S.E. 677. The same rule applies to the plaintiff when contributory negligence is relied upon as a defense.

My philosophy of life includes an abiding faith in the good judgment and common sense of the men and women who constitute the juries in our courts. To me, the right of a trial by jury is one of the brightest jewels in the diadem of democratic processes. “In my mind, he was guilty of no error, . . . who once said that all we see about us, kings, lords, and Commons, the whole machinery of the State, . . . end in simply bringing twelve good men into a box.”

In conclusion, as my tenure of office draws to a close, I beg leave to say that I shall always carry in my heart a deep sense of gratitude for the opportunity of having served the people of my State as a member of this Tribunal. I say now and certify to succeeding generations that the fellowship and co-operation of my colleagues constitute a priceless treasure which I shall carry with me on the journey westward toward life’s sunset with its restful radiant glow.

> “Let Fate do her worse, there are relics of joy,

> Bright dreams of the past, which she cannot destroy;

> Which come, in the night-time of sorrow and care,

> And bring back the features which joy used to wear.

> Long, long be my heart with such memories filled!

> Like a vase in which roses have once been distilled—

> You may break it, you may shatter the vase, if you will,

> But the scent of the roses will hang round it still.”