#### CHARLIE RIGGS v. GULF OIL CORPORATION and JOHN THOMAS MATTHEWS.

(Filed 14 April, 1948.)

Automobiles § 18h (3) — Plaintiff's evidence disclosing he could not stop within range of headlights held to warrant nonsuit for contributory negligence.

Testimony by plaintiff disclosing that he was traveling 25 miles per hour along a highway within the residential district of a municipality on a dark, foggy night, and that he hit the rear of defendant’s truck which was parked without lights on its right-hand side of the highway, G. S., 20-161, that there was no other traffic at the scene at the time, that he could have stopped his car in four or five feet but that" his lights were dimmed and shone under the truck so that he did not ■ see the truck in time to stop before hitting it, is held, to disclose contributory negligence as a matter of law in traveling at a speed at which, under the circumstances, plaintiff could not stop within the range of his headlights, which constituted at least one of the proximate causes of the injury.

Appeal by plaintiff from Stevens, J., at November Term, 1947, of I/EN0IR.

Civil action to recover for personal injury and property damages alleged to bave been sustained by the plaintiff, in a collision of plaintiff’s automobile with an oil truck owned by the corporate defendant and operated by its servant.

*775The plaintiff alleges thatiahn Thomas Matthews was operating the truck owned by the defendai corporation, about 5 :15 a.m., on 26 January, 1945, on Vernon Avenu, in the City of Kinston; that the driver of said truck parked the same a tbe right-hand side of the paved and traveled portion of said street,without lights on said truck and without flares or any other warninj signal, warning the public • generally, and particularly the plaintiff, o the presence of the truck upon said street. It is alleged there was a lavy fog or mist in the area, lessening the visibility of objects on or nar the paved portion of the street; and that while plaintiff was drivin his automobile in a lawful and prudent manner along said street, itsollided with the rear end of the truck of the corporate defendant, resultig in serious physical injuries to the plaintiff and substantial damage to ds automobile.

The defendant, Gulf Cl Corporation, filed an answer, admitting ownership of the truck ancthat John Thomas Matthews was driving it on 26 January, 1945. AI other material allegations of the complaint are denied, but the corponte defendant alleges that if the defendants were guilty of negligence, he plaintiff was guilty of contributory negligence.

The plaintiff testified tht he had been employed at the Post Office in Kinston for about 17 yeas; that he went on duty at five o’clock in the morning; that he lived abut a mile and a half from the Post Office, and about five o’clock on the norning of 26 January, 1945, he was driving his car along Vernon Averae in the City of Kinston, which Street is a part of the U. S. Highwa; No. 70; that he was traveling “not exceeding 25 miles an hour” after Is got in town; that he did not meet any other vehicles on the trip; thi the truck of the Gulf Oil Corporation was parked directly on the hijhway, which had his half of the highway completely blocked; the truel had no lights oh it. The weather was foggy,with rain and mist, and 'ow-hanging fog. Under the conditions existing that morning, he could lave seen an object right down the highway for about 200 feet. “What happened, my lights — the beams were shining down and under the truer and it prevented me from seeing it until I saw the bulk of the truck. I was too close to attempt to put on brakes. It was parked in the dark and fog. I didn’t have time to pick my feet up and put them on the brakes, let alone put on the brakes. I could have seen a light on the higlway that morning, a long ways for that matter, five or six hundred yards, if there had been a light to see. I don’t know the color of the truck; I didn’t have time to see that. I seen it and the next instant I hit it. 1 struck the rear end, I guess; I was traveling on my right-hand side o; the road. I was knocked unconscious by the impact.” On eross-exsmination, the plaintiff further testified: “I could not see very high up iu the fog and darkness. The tanker was parked up *776there in the dark without, any lights . . . s all. I could see at least 200 feet up ahead, 2 feet from the ground. Bould not see that far, 5 feet up. I could not have seen 5 feet ahead of [e 5 feet above the ground, as dark as it was and the mist. I could see tithe front of my car, but my lights were dimmed down. I could see bettr that way than up. I could see practically nothing right in front of nhbeyond 200 feet. I doubt if I could have seen 200 feet four feet above t'e ground. It was foggy and pretty dark. ... I could have stopped the p.r in from 4 to 5 feet; I had perfect brakes. If I had seen the truck 4(5 feet before I got there I could have stopped. It had not been rainiii; that night; I didn’t notice any water on the highway.” !

E. H. Tyn'dale testified the collision occjrred in front of his home. He was awakened by the collision. He was Sleeping in a room about 20 feet from where the truck was parked. "Vfyen he first looked towards the street he could only see the bulk of the [ruck, but before he got off the bed the lights were switched on. j

At the close of plaintiff’s evidence, the coiorate defendant moved for judgment as of nonsuit. The motion was'allowed, and the plaintiff appealed, assigning error.

J. A. Jones for plaintiff.

Thos. J. White and H. Franlc Owens, Jr.'¡for Gulf OH Corporation, defendant. ;

DeNNy, J.

The provisions of our statute linking it unlawful for any person to park or leave standing any vehicle, whether attended or unattended, upon any highway, is subject to cktain exceptions. G. S., 20-161, subsection (c).

Whether the corporate defendant’s truck was temporarily disabled and came within the above exception, is not disclosed. However, the corporate defendant alleges in its answer, that at tin time of the collision, its truck was properly lighted and was. proceeding eastwardly on Yernon Avenue, in the City of Kinston, at a speed betveen 10 and 15 miles per hour. No evidence was offered in .support of tlese allegations, since the motion for judgment of nonsuit was granted at the close of plaintiff’s evidence. Nevertheless, if it be conceded the defendants were guilty of negligence, we think the plaintiff’s evidence established contributory negligence as a matter of law.

The appellant is relying on the case of Cummins v. Fruit Co., 225 N. C., 625, 36 S. E. (2d), 11. We do not think that case is controlling on the record before us. There the defendant’s truck had been parked on a highway, outside of a business or residential district, without lights of any kindj in violation of Gr. S., 20-161. The weather was misty, foggy *777and drizzling rain. And at ti time tbe plaintiff was approaching the parked vehicle, he was meetig an automobile which necessitated the dimming of his lights, and thj headlights of the oncoming car temporarily blinded him until it watoo late to stop his car before colliding with the rear end of defendanlj truck. Here the plaintiff met no other vehicle, but was driving his ¡itomobile with dimmed lights, along a street in the City of Kinston, a|5 :00 o’clock in the morning, through fog and mist that was so heavy hijheadlights would, not give him visibility for a distance of five feet, fivejeet above the ground. Even so, he proceeded to drive his ear under itch conditions, at a rate of speed of 25 miles per hour. He also testifk that “under the conditions existing that morning, he could have seen aipbject right down the highway for about 200 feet,” but explained that nat happened he had dimmed his lights and they were shining down rider the truck and that prevented him from seeing it until he was tocjclose to it to attempt to stop before colliding with it. He testified tjit if he had seen the truck 4 or 5 feet before he collided with it, he (juld have stopped. Yet he collided with the rear end of defendant’s trek with such force as to sustain serious physical injuries and damaged is car, he alleges, to the extent of $320.00.

The evidence discloses a failre on the part of the plaintiff to exercise reasonable care for his own sjety. He was operating his car in such manner and at such speed as tdnake it impossible for him to stop within the range of his lights. As a latter of fact, according to the plaintiff’s own testimony, when he camijmfficiently close to the corporate defendant’s parked truck for it to b^Vithin the range of his headlights, he was too close to it to even attempto stop. His negligence was at least one of the proximate causes of h injury, and that is sufficient, to defeat a recovery. Weston v. R. R., 94 N. C., 210, 139 S. E., 237; Stallings v. Transport Co., 210 N. C., 20, 185 S. E., 643; Lee v. R. R., 212 N. C., 340, 193 S. E., 395; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; Beck v. Hooks, 218 N. C., 10, 10 S. E. (2d), 608; Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 13; Peoples v. Fulk, 220 N. C., 635, 18 S. E. (2d), 203; Pike v. Seymour N. C., 42, 21 S. E. (2d), 884; Allen v. Bottling Co., 223 N. C., 11, 25 S. E. (2d), 388; McKinnon v. Motor Lines, ante, 132, 44 S. E. (l), 735; Tyson v. Ford, post, 778.

The judgment of the coijfc below is

Affirmed.