King v. Powell

114 S.E.2d 265 (1960)

252 N.C. 506

Gladys F. KING, Administrator of the Estate of Pamela Faye King, Deceased, v. Hoover POWELL and James Adam King.

No. 391.

Supreme Court of North Carolina.

May 18, 1960.

*267 Averitt & White, Winston Salem, for plaintiff, appellee.

Hudson, Ferrell, Carter, Petree & Stockton, Winston Salem, for defendant Powell, appellant.

Womble, Carlyle, Sandridge & Rice and H. Grady Barnhill, Jr., Winston Salem, for defendant King, appellant.

BOBBITT, Justice.

The assignments of error brought forward by Powell in his brief are these: Assignments of error 1 and 2, directed to the denial of his motions for judgment of nonsuit; and assignments of error 3, 4, 5, 6, 7, 8, 11, 12 and 13, directed to designated portions of the court's instructions to the jury. Other assignments of error are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562.

Evidence was offered by plaintiff, by Powell and by King. Hence, the only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. § 1-183; Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541. In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiff or by either of the defendants, must be considered in the light most favorable to plaintiff. Murray v. Wyatt, supra. Mindful of these well established rules, we consider the evidence tending to support plaintiff's allegations that negligence on the part of Powell was a concurring proximate cause of the collision and of her intestate's death.

*268 With reference to G.S. § 20-158(a), the legal principles stated below are well established.

"* * * the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives, or should give notice to the contrary, he will be entitled to assume and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway." Winborne, J., (now C. J.), in Hawes v. Atlantic Refining Co., 236 N.C. 643, 650, 74 S.E.2d 17, 21; Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373; Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305; Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544.

In Blalock v. Hart, supra, Johnson, J., after quoting the above excerpt from Hawes v. Atlantic Refining Co., supra [239 N.C. 475, 80 S.E.2d 377], continues: "However, the driver on a favored highway protected by a statutory stop sign, G.S. 20-158, does not have the absolute right of way in the sense he is not bound to exercise care toward traffic approaching on an intersecting unfavored highway. It is his duty, notwithstanding his favored position, to observe ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon him in approaching and traversing such an intersection (1) to drive at a speed no greater than is reasonable and prudent under the conditions then existing, (2) to keep his motor vehicle under control, (3) to keep a reasonably careful lookout, and (4) to take such action as an ordinarily prudent person would take in avoiding collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered or should have been discovered." Caughron v. Walker, supra; Primm v. King, 249 N.C. 228, 106 S.E.2d 223; Carr v. Lee, supra.

It is noted that the trial judge fully and accurately instructed the jury as to these legal principles.

Plaintiff alleged, in substance, that Powell was negligent in that he failed to perform the legal obligations indicated in (1), (2), (3) and (4) of the above quotation from the opinion in Blalock v. Hart, supra.

Powell contends, on authority of Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, and similar cases (see Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919, and cases cited therein), that the evidence establishes the negligence of King as the sole proximate cause of the collision. If the only reasonable inference to be drawn from the evidence is that Powell, when he saw or should have seen King enter the intersection, could not have avoided the collision even if he were free from negligence in the respects alleged, the rationale of these decisions would apply. Suffice to say, this is not the only reasonable inference that may be drawn from the evidence.

The testimony most favorable to plaintiff tends to show that Powell approached the intersection in a 35 mile speed zone; that, shortly after the collision, he stated to the investigating State Highway Patrolman that "he was doing approximately 50 miles an hour * * * when he first saw Mr. King's car"; that two solid parallel lines of skid marks, "roughly 6 feet apart," made by the Powell car, extended 50 feet west from the point of impact; and that the impact was of such violence as to cause three of the passengers in the King car, including the intestate, to be thrown therefrom. This testimony, together with evidence as to the course, position and damaged condition of each car after the collision, was sufficient to support a finding *269 that Powell was operating his car at an unlawful and excessive speed.

Moreover, the evidence most favorable to plaintiff tends to show that the front part of the King car had crossed and was out of the intersection when the collision occurred, and that the Powell car was 100 feet or more away after the King car had actually entered the intersection. Too, a witness testified that Powell stated that he saw the King car when it was 150 feet away; that he put on his brakes; that, thinking the King car was going to get out of the way, he took his foot off the brakes and put it on the gas; and that, when he saw the King car was not going to get out of the way, he put his foot back on the brakes and tried to stop.

The evidence referred to above was sufficient in our opinion to support a finding by the jury that Powell, when he saw the King car enter the intersection, could and should have brought his car under control and stopped, if necessary, and avoided the collision, if he had operated his car at a lawful speed and had exercised reasonable care to have his car under proper control after he saw the King car in the intersection. If Powell was unable or failed to bring his car under control and stop, if necessary, and thereby avoid the collision, either because of his unlawful and excessive speed or because of his assumption that the King car would clear the intersection before he (Powell) reached it, or a combination of these factors, his negligence in respect thereof was a proximate cause of the collision.

For the reasons stated, Powell's assignment of error directed to the court's refusal to enter judgment of nonsuit is overruled.

In this Court, Powell demurred ore tenus to the complaint on the ground that the facts alleged show that King's negligence was the sole proximate cause of the collision. Emphasis is placed upon an allegation to the effect that Powell drove his car into the King car "immediately" after King had entered the intersection. However, when plaintiff's further allegations are considered, to wit, allegations to the effect that Powell, after he saw the King car in the intersection, had opportunity to avoid the collision, we think the word "immediately," when considered in the context of the entire complaint, must be construed as denoting a very short time rather than as denoting simultaneous events. The rule requiring that a pleading be liberally construed in favor of the pleader would seem to require this interpretation. Moreover, the trial below was conducted on that theory. Hence, Powell's demurrer ore tenus is overruled.

In each of the assignments of error relating to the charge, Powell sets out the portion to which exception was taken. In each instance, the quoted excerpt is preceded by these words: "For that the trial court erred in charging the jury as follows, and in failing to declare and explain the law relative to proximate cause and insulated negligence as it related to the evidence in this case, * * *"

Examination of the instructions given in each of the quoted excerpts fails to disclose prejudicial error. Indeed, Powell's brief contains no contention that these instructions are erroneous. Rather, his contention is that they are inadequate in the respect indicated in his assignments of error.

"It is elemental that an exception to an excerpt from the charge ordinarily does not challenge the omission of the court to charge further on the same or another aspect of the case." Peek v. Wachovia Bank & Trust Co., 242 N.C. 1, 16, 86 S.E.2d 745, 756; Rigsbee v. Perkins, 242 N.C. 502, 503, 87 S.E.2d 926; State v. Taylor, 250 N.C. 363, 365, 108 S.E.2d 629.

In the case on appeal, no exception was taken by Powell to any omission or failure of the court to give further instructions bearing on any aspect of the case. Thus, the portion of each assignment of error relating *270 to the alleged inadequacy of the charge is not supported by exception.

Apart from the foregoing, a careful reading of the charge compels the conclusion that it is in substantial compliance with G.S. § 1-180.

While Powell does not indicate with particularity what instructions he contends the court should have given, it would seem that Powell, had he so requested, would have been entitled to an explicit instruction to the effect that if, when he saw or should have seen the King car was not stopping but was entering the intersection, he (Powell) was then so close to the intersection that he could not have avoided the collision even if traveling at a lawful rate of speed, his unlawful or excessive speed, under such circumstances, would not be a proximate cause of the collision. Even so, the instructions given, although in less specific terms, seem sufficient to convey this idea to the jury. Indeed, this idea is very clearly embraced in the court's recital of this contention: "She (plaintiff) contends further that the defendant Powell, had he been driving at a reasonable and prudent rate of speed, could have stopped, and would have stopped, his automobile, if necessary, or at least would have driven it in such a manner, had his speed been reasonable and prudent, to have avoided the collision."

It is noteworthy that Powell's testimony was that he slowed down from 50 to 35 miles per hour when he passed the "35 MPH" sign; that, as he approached the intersection, his speed was no greater than was reasonable and prudent under the conditions then existing; and that he was not put on notice that King would enter the intersection until he (Powell) had reached a point 50-75 feet from the intersection, at which time he was unable to avoid the collision. Under these circumstances, the failure of the court, in the absence of special request, to give more explicit instructions, such as that indicated in the preceding paragraph, predicated on the hypothesis that the jury would reject Powell's testimony and find that he was driving at an unlawful and excessive speed, is not deemed sufficient ground for a new trial.

The only assignment of error brought forward in King's brief is directed to the competency of King's testimony, elicited on cross-examination by counsel for Powell, to the effect that King had entered a plea of guilty to a charge of manslaughter on account of the death of plaintiff's intestate. The court overruled the objection interposed by King to the question by which this testimony was elicited and the assignment of error is based on King's exception to this ruling.

In 18 A.L.R.2d 1307, many decisions are cited in support of this statement: "In civil actions where one of the issues is the guilt of a person convicted of a criminal offense, or some fact necessarily involved in the determination of such guilt, the courts are agreed that it is proper to admit evidence of the person's plea of guilty to the criminal offense." For earlier decisions, see 31 A.L.R. 278.

It is noted that the criminal charge of manslaughter on account of the death of plaintiff's intestate included all elements necessary to establish King's actionable negligence. It is noted further that the fact of King's plea of guilty is established by his own testimony.

The court sustained King's objections to questions asked plaintiff's witnesses concerning the manslaughter charge and King's plea thereto. The question was allowed only on cross-examination of King. Unquestionably, it was competent, as bearing upon the credibility of King's testimony, for Powell's counsel to elicit the admission that King had pleaded guilty to the manslaughter charge. Whether competent (as an admission) as substantive evidence is not directly presented on this appeal.

*271 After full consideration of each appeal, we find no error deemed sufficiently prejudicial to justify a new trial. Hence, the verdict and judgment will not be disturbed.

Powell's appeal, no error.

King's appeal, no error.