Farmer v. Reynolds

167 S.E.2d 480 (1969)

4 N.C. App. 554

Frances Delores FARMER v. Ronald Jack REYNOLDS, James Cameron Crumpler, and Elbert Norwood Crumpler.

No. 698SC208.

Court of Appeals of North Carolina.

May 28, 1969.

Certiorari Denied July 10, 1969.

*483 H. Jack Edwards and George K. Freeman, and Futrelle & Baddour, by Philip O. Baddour, Jr., Goldsboro, for plaintiff appellant.

Braswell, Strickland, Merritt & Rouse, by Roland C. Braswell, Goldsboro, for defendant appellee Reynolds.

Dees, Dees, Smith & Powell, by William W. Smith, Goldsboro, for defendant appellees Crumpler.

FRANK M. PARKER, Judge.

Appellant's first assignment of error is directed to the judgment of nonsuit entered as to the defendant Reynolds. In this judgment we find no error. Plaintiff's evidence, even when viewed in the light most favorable to her, disclosed no negligence on the part of defendant Reynolds.

G.S. § 20-158.1, which authorizes the erection of "yield right-of-way" signs, provides in part: "(W)henever any such yield right-of-way signs have been so erected, it shall be unlawful for the driver of any vehicle to enter or cross such main traveled or through highway or street unless he shall first slow down and yield the right-of-way to any vehicle in movement on the main traveled or through highway or street which is approaching so as to arrive at the intersection at approximately the same time as the vehicle entering the main traveled or through highway or *484 street." In the case of Yost v. Hall, 233 N.C. 463, 64 S.E.2d 554, Barnhill, J. (later C. J.), interpreting a companion statute, G.S. § 20-158, said: "(T)he fact a motorist on a servient road reaches the intersection a hairsbreadth ahead of one on the dominant highway does not give him the right to proceed. It is his duty to stop and yield the right of way unless the motorist on the dominant highway is a sufficient distance from the intersection to warrant the assumption that he can cross in safety before the other vehicle, operated at a reasonable speed, reaches the crossing." (Emphasis added.)

In the present case, defendant Reynolds was on the servient street. Under plaintiff's evidence, he was driving within the speed limit and slowed his vehicle to approximately ten miles per hour as he reached the intersection. As he entered the intersection, the Crumpler car on the dominant street was still 200 to 250 feet away, certainly a sufficient distance from the intersection to warrant the assumption that he could cross in safety before the Crumpler vehicle, operated at a reasonable speed, could reach the crossing. He was under no duty to anticipate that the operator of the Crumpler car, while approaching the intersection, would fail to observe the applicable speed regulations. Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17. The driver along the servient highway is not required to anticipate that a driver on the dominant highway will travel at excessive speed or fail to observe the rules of the road applicable to him. 1 Strong N.C. Index 2d, Automobiles, § 19, p. 424. In the present case plaintiff's evidence did not disclose anything which should have put defendant Reynolds on notice, in the exercise of due care, that the Crumpler vehicle would travel at such a speed in excess of the applicable limit that it would arrive at the intersection at approximately the same time as his own vehicle. Plaintiff's evidence disclosed that as the Reynolds car approached the intersection the lights of the Crumpler car on the dominant street were visible, but it was not then possible to know if the car from which the lights were shining was parked or moving. Certainly this evidence would disclose nothing which would have placed Reynolds on notice as to the speed of the Crumpler vehicle. Had that vehicle been moving at the posted speed limit of 25 miles per hour, there would have been ample time for the Reynolds vehicle to have proceeded through the intersection in safety before the Crumpler car reached it. By the time Reynolds, in the exercise of due care, could have become aware of the speed of the approaching car, he was already in the intersection, moving at a speed of only ten miles per hour. Had he then attempted to stop, he might well have been struck broadside by the approaching car. Plaintiff's own witness apparently felt that the safest course for Reynolds to take was to speed up, rather than to slow down, for he so advised. By following that course, Reynolds very nearly succeeded in avoiding the collision. Viewing all of plaintiff's evidence in the light most favorable to her, we find no sufficient evidence of any negligence on the part of defendant Reynolds to warrant submission of an issue on that question to the jury.

Appellant's second assignment of error relates to the court's charge to the jury on the issue of negligence on the part of the operator of the Crumpler vehicle. In this connection, plaintiff had alleged and offered evidence tending to establish negligent acts on the part of such operator in a number of respects. On this issue the court charged the jury:

"The Court further instructs you that if the plaintiff, who has the burden of proof on this Issue #1, has satisfied you from the evidence and by its greater weight that the defendant operated his automobile in which he was riding, belonging to his father, at a speed greater than 25 miles per hour, that that within itself would be negligence, and if the *485 plaintiff has further satisfied you from the evidence and by its greater weight that such negligence was the proximate cause of the injury complained of by the plaintiff, it would be your duty to answer this first issue YES. If you fail to so find, you would answer it NO.

"The Court further instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that the defendant James Cameron Crumpler, operating the automobile of his father, operated the same at a speed greater than reasonable and prudent, although less than that allowed by law, and the plaintiff has further satisfied you from the evidence and by its greater weight that such operation was the proximate cause, the cause without which the injury and damage to the plaintiff would not have occurred, it would be your duty to answer the first issue YES. If the plaintiff has failed to so satisfy you on that point, you would answer it NO.

"The Court further instructs you that if the plaintiff has satisfied you from the evidence and by its greater weight that the defendant in the operation of the automobile owned by his father, failed to keep a proper lookout, or that he failed to operate his vehicle by keeping it under reasonable control; and you further find from the evidence and by its greater weight that one or more of such acts was the cause without which the collision would not have occurred, it would be your duty to answer the first issue YES. If you fail to so find in each instance, you would answer the first issue NO.

In this charge there was error. A plaintiff is entitled to rely upon a number of aspects of negligence. The jury should answer the issue of negligence in the affirmative if negligence is found in any one respect, if such negligence is a proximate cause of the injury. It is not necessary that defendant be found negligent in all of the aspects relied on. 6 Strong N.C. Index 2d, Negligence, § 37, p. 79. The error in the above charge lies in the fact that from it the jury could well have understood that the negligent aspect had to be the proximate cause and not a proximate cause of plaintiff's injury and further the jury could well have understood that had they failed to find defendant negligent in any one aspect, it would have then been their duty to answer the issue in the negative.

Appellant's third assignment of error is that the court failed to charge the jury that the operator of a motor vehicle has the duty to yield the right-of-way to another motor vehicle which is already within an intersection and that failure to do so may constitute negligence. In this connection plaintiff in her complaint had alleged that the operator of the Crumpler vehicle was negligent in that he failed to yield the right-of-way to a vehicle already within an intersection. This allegation was supported by evidence introduced at the trial. Plaintiff's principal witness had testified that the Reynolds car had already passed the midportion of the intersection and its rear had cleared the center line by five feet at the time of the collision. Where the driver on the servient street is already in the intersection before the vehicle approaching on the dominant street is near enough the intersection to constitute an immediate hazard, the driver on the servient street has the right-of-way. 1 Strong N.C. Index 2d, Automobiles, § 19, p. 424. It was error for the court to fail to charge on this aspect of negligence on the part of the driver of the Crumpler vehicle.

In the judgment of nonsuit as to defendant Reynolds we find

No error.

For error in the charge in appellant's action against defendants Crumpler there must be a

New trial.

CAMPBELL and MORRIS, JJ., concur.