Downs v. Odom

108 S.E.2d 65 (1959)

250 N.C. 81

James M. DOWNS, Administrator of the Estate of James Downs, Jr., deceased, v. Clyde W. ODOM and J. T. Odom, t/a Odom Tile Company, and Ernest Taylor, Jr.

No. 233.

Supreme Court of North Carolina.

April 8, 1959.

*66 Fountain, Fountain, Bridges & Horton, Tarboro, for plaintiff.

*67 Battle, Winslow & Merrell, by Robert M. Wiley, Rocky Mount, for defendants.

DENNY, Justice.

The only question presented for determination on this appeal is whether or not the trial court committed error in sustaining the defendants' motion for judgment as of nonsuit.

The accident occurred at an intersection which had no stop signs or traffic signals. The statute governing such an intersection is G.S. § 20-155, which in pertinent part reads as follows: "(a) When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right * * *. (b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right-of-way to a vehicle already within such intersection and/or junction whether the vehicle in the junction is proceeding straight ahead or turning in either direction * * *."

Subsection (a) of the above statute does not apply unless the two vehicles approach or enter the intersection at approximately the same time. Under subsection (b) of the statute the vehicle first reaching an intersection which has no stop sign or traffic signal has the right of way over a vehicle subsequently reaching it, irrespective of their directions of travel; and it is the duty of the driver of the latter vehicle to delay his progress and allow the vehicle which first entered the intersection to pass in safety. State v. Hill, 233 N.C. 61, 62 S.E.2d 532; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E.2d 642; Yellow Cab Co. of Charlotte v. Sanders, 223 N.C. 626, 27 S.E.2d 631.

The defendants cite and rely on Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; Freeman v. Preddy, 237 N.C. 734, 76 S.E.2d 159; and Bennett v. Stephenson, 237 N.C. 377, 75 S.E.2d 147. We think the facts in these cases are distinguishable from those in the instant case.

In Taylor v. Brake, supra, the facts were somewhat similar to those involved on this appeal, except there was no evidence that either car involved in the collision was exceeding the speed limit. At the close of all the evidence the court sustained the defendants' motion for judgment as of nonsuit. On appeal, this Court, speaking through Parker, J., said: "Plaintiff contends that the case should have been submitted to the jury on the theory that he was already within the intersection when the defendant Brake approached it. This Court said in Cox v. Hennis Freight Lines (Matthews v. Hennis Freight Lines), 236 N.C. 72, 72 S.E.2d 25, 28. `The court can not submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence.' Plaintiff has not alleged anywhere in his complaint that he was already within the intersection, when the defendant Brake approached the intersection but had not entered it, nor has he testified that he entered the intersection first. It is true that plaintiff alleged the defendants were negligent by `negligently, recklessly and carelessly failing to yield the right-of-way to this plaintiff's automobile as by law required.' `To characterize an act or course of conduct as negligent without more is insufficient. As stated in McIntosh on Prac. and Pro., sec. 388, "In negligence cases, a general allegation of negligence is insufficient and the facts constituting negligence must be given and that it was the cause of plaintiff's injury."

Fleming v. Carolina Power & Light Co., 232 N.C. 457, 61 S.E.2d 364, 368. This allegation is insufficient to support plaintiff's theory that plaintiff had the right-of-way by virtue of G.S. [§] 20-155(b)." The judgment as of nonsuit was affirmed.

In the instant case the plaintiff alleged in his pleadings and offered testimony at *68 the trial tending to show that the Downs car entered the intersection first.

In the case of Freeman v. Preddy, supra, the case was submitted to the jury on plaintiff's cause of action and the defendants' cross-action. Issues of negligence, contributory negligence and damages were submitted to the jury. The jury answered the issues of negligence and contributory negligence in the affirmative as to both causes of action. On appeal by the defendants, we found no error.

In the case of Bennett v. Stephenson, supra, the evidence was to the effect that both cars were being operated around 30 miles per hour; that the collision occurred in the intersection of West Edgerton Street and North Orange Avenue, in the Town of Dunn, slightly west of the center of the intersection. Skid marks from each car measured 36 feet. On appeal from a judgment as of nonsuit, we affirmed.

In the instant case it was stipulated that the legal speed limit where the accident occurred was 25 miles per hour. There is evidence that the Downs car was being operated at a speed of 15 or 20 miles per hour and that the Odom truck was being operated at a speed of 35 or 40 miles per hour.

On a motion for judgment as of nonsuit a plaintiff is entitled to have the evidence considered in the light most favorable to him and to the benefit of every reasonable inference to be drawn therefrom. When the evidence is so considered, we think it is sufficient to carry the case to the jury. Donlop v. Snyder, supra, and cited cases.

In our opinion, the question as to whether or not the driver of the Downs car was guilty of contributory negligence by entering the intersection at the time and under the conditions then existing is for the jury. Donlop v. Snyder, supra; Kennedy v. Smith, supra.

The judgment of the court below is

Reversed.