Smith v. Staton , 41 N.C. App. 395 ( 1979 )

PARKER, Judge.

Plaintiff assigns error to the granting of defendant’s motion for a directed verdict. We find error in this regard and reverse.

The following statement of law, which has been quoted with approval by our Supreme Court in Bass v. McLamb, 268 N.C. 395, 150 S.E. 2d 856 (1966), Saunders v. Warren, 267 N.C. 735, 149 S.E. 2d 19 (1966), and Chandler v. Bottling Co., 257 N.C. 245, 125 S.E. 2d 584 (1962), is particularly applicable to the facts of the present case:

The operator of a standing or parked vehicle which constitutes a source of danger to other users of the highway is generally bound to exercise ordinary or reasonable care to give adequate warning or notice to approaching traffic of the presence of the standing vehicle, and such duty exists irrespective of the reason for stopping the vehicle on the highway. So the driver of the stopped vehicle must take such precautions as would reasonably be calculated to prevent injury, whether by the use of lights, flags, guards, or other practical means, and failing to give such warning may constitute negligence. * * * 60 C.J.S. Motor Vehicles, § 325, pp. 779, 780.

(See 60A C.J.S., Motor Vehicles, § 335(1), pp. 394-95.)

It is true, as defendants point out, that plaintiff’s evidence fails to disclose how long the logging truck had been standing blocking the highway when the collision occurred, why it was there, and what opportunity defendants had had to give warning of its presence. In passing on a defendant’s motion for a directed verdict, however, the court must examine not only the evidence but also the admissions and such allegations of new matter in defendant’s pleadings as are favorable to the plaintiff. As pointed out by Lake, J., speaking for our Supreme Court in Champion v. Waller, 268 N.C. 426, 150 S.E. 2d 783 (1966):

It is elementary that in passing upon a motion for judgment of nonsuit the evidence of the plaintiff must be taken to be true, and must be interpreted in the light most favorable to him, and all reasonable inferences in his favor must be drawn therefrom. Bowling v. Oxford, 267 N.C. 552, 148 S.E. 2d 624

Facts alleged in the complaint and admitted in the answer are conclusively established by the admission, it not being necessary to introduce such allegations in evidence. Wells v. Clayton, 236 N.C. 102, 72 S.E. 2d 16; Stansbury, North Carolina Evidence, § 177. The same is true of allegations of new matter in a further answer, which new matter is favorable to the plaintiff. In passing upon a motion for judgment of non-suit, all such allegations in the answer are taken to be true and are to be considered along with the evidence.

268 N.C. at 428, 150 S.E. 2d at 785.

In the present case defendants admitted in their answer the allegations in plaintiff’s complaint that they “were engaged in a logging operation and were clearing some land alongside of North Carolina Highway #205,” that defendant Staton was the operator of the International truck which was owned by defendant Smith, and that defendant Staton was the employee of defendant Smith and was operating the truck as his agent and employee. In their further answer, in which they alleged specific facts as a basis of their plea of contributory negligence, defendants went further and alleged in detail the facts as to how and why the logging truck got to the position it was in when the accident occurred.

When plaintiff’s evidence is examined in the light most favorable to her and is supplemented by the admissions and allegations favorable to her in defendants’ answer, we find it sufficient to support a finding that defendant Staton, acting as defendant Smith’s employee, deliberately drove defendant Smith’s logging truck at night across the highway, completely blocking both lanes of travel; that he did this “[b]ecause the driveway through which the log truck would pass onto the highway was narrow and because the truck was long, the log truck could not be driven onto the highway in one continuous movement, but had to be pulled forward into the highway and then backed up before it could be turned to proceed south along the highway;” that defendants were aware that “this procedure would take more than a few seconds to accomplish” and that it was necessary to give warning to southbound motorists, such as the plaintiff; that in order to give such warning they “positioned a Ford pickup truck at the west edge of the highway, facing south, about 180 feet north of where the log truck would be entering the highway, and left the lights burning on the Ford pickup;” that when plaintiff approached the scene driving her vehicle in the right-hand south-bound lane at approximately 35 miles per hour, a vehicle described by her as a “grain truck” was parked, partially in the south-bound lane, between the Ford pickup and defendants’ logging truck; that the logging truck was at that time standing still directly across and completely blocking the road and with its lights directed away from oncoming south-bound traffic; and that plaintiff was confronted in the darkness so suddenly with defendants’ stationary logging truck blocking the road that she was unable to avoid hitting it.

In our opinion the foregoing facts, if found by the jury, present a question for the jury to determine whether defendants used due care under the circumstances to give adequate warning to the plaintiff and to other persons using the highway that their logging truck was completely blocking the roadway. This is not the case, as was presented in Blanton v. Frye, 272 N.C. 231, 158 S.E. 2d 57 (1967), where defendant’s vehicle stalled on the highway, thereby creating a sudden emergency without fault on the part of the defendants. Here, defendants admitted in their answer that they knew before they brought their truck upon the highway that it would completely block the roadway for an appreciable period of time and that it was necessary for them to take steps to warn others using the highway of the danger thereby created. In our opinion whether the steps taken by the defendants in this case were compatible with the standard of due care was for the jury to determine. We hold that the foregoing facts would warrant a jury finding that defendants were negligent in failing to give plaintiff adequate warning of the presence of their logging truck on the highway and that such negligence on the part of the defendants was a proximate cause of plaintiff’s injuries.

The evidence in this case, when supplemented by such of the allegations in defendants’ answer as are favorable to plaintiff, and when both evidence and defendants’ allegations are examined in the light most favorable to the plaintiff, also fails to show contributory negligence on the part of the plaintiff as a matter of law. In the light most favorable to plaintiff, the evidence and defendants’ allegations favorable to her would support a jury finding that plaintiff, driving her vehicle 35 miles per hour in a 55 mile per hour speed zone, was suddenly confronted by defendants’ truck standing across and completely blocking the highway at a point only 180 feet away from the Ford pickup truck which defendants had parked on the west side of the highway with its lights on to give approaching traffic warning of the danger which the presence of the logging truck on the highway presented. At 35 miles per hour plaintiff’s vehicle would travel the intervening 180 feet in approximately 3V2 seconds. During a part of that time she was required to steer her vehicle around the grain truck which was parked partially blocking her lane of travel. Whether, in. the exercise of due care, she could or should have seen the logging truck earlier and in time to avoid the collision presented a question for the jury. Contributory negligence on the part of the plaintiff has not been shown as a matter of law.

The record on appeal in this case does not indicate that any portion of defendants’ answer was introduced in evidence. We are, of course, advertent to decisions of our Supreme Court, such as Edwards v. Hamill, 266 N.C. 304, 145 S.E. 2d 884 (1966), which held that unless introduced in evidence, allegations of new matter in a defendant’s answer, as distinguished from admissions of specific allegations in the complaint, cannot be considered in passing upon the motion for nonsuit. On authority of Champion v. Waller, supra, decided subsequent to the decision of Edwards v. Hamill, we hold that it is not necessary that any portion of the pleadings be introduced in evidence in order that allegations of new matter in defendant’s answer favorable to the plaintiff may be considered in passing on the defendant’s motion for a directed verdict. See 2 Stansbury’s N.C. Evidence, Brandis Rev. § 177; 44 N.C.L. Rev. 919 (1966); 45 N.C.L. Rev. 840-42 (1967).

Defendants, as a cross assignment of error, assign error to the court’s allowing plaintiff to amend her complaint. In this connection defendants contend that plaintiff’s evidence failed to support the allegations in the amendment. Even so, the allegations in the amendment are consistent with those portions of the allegations of new matter in defendants’ answer which are favorable to the plaintiff. The trial court’s allowance of the amendment was proper pursuant to the discretionary power given it by G.S. 1A-1, Rule 15(a) because the allegations in the amendment concern the blocking of the road by defendants’ truck, which is admitted in the answer, and the adequacy of the warning given, which is an issue raised in the answer. We find no error in the allowance of the amendment.

The order allowing defendants’ motion for a directed verdict is

Reversed.

Judges Hedrick and Carlton concur.