Tucker v. Moorefield , 250 N.C. 340 ( 1959 )

108 S.E.2d 637 (1959) 250 N.C. 340

Sarah TUCKER, Administratrix of the Estate of Jack B. Tucker, Deceased,
v.
Hubert L. MOOREFIELD and Hubert L. Moorefield, Jr.

No. 243.

Supreme Court of North Carolina.

May 20, 1959.

Carswell & Justice and Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendants-appellants.

Goodman & Goodman, Carpenter & Webb and John G. Golding, Charlotte, for plaintiff-appellee.

BOBBITT, Justice.

This Court is of opinion that the evidence, when considered in the light most favorable to plaintiff, was sufficient to require submission of the case to the jury. Hence, the assignment of error directed to denial of defendants' motion for judgment of nonsuit is overruled. Since a new trial is awarded for reasons stated below, we refrain from a discussion of the evidence presently before us. Caudle v. Southern Ry. Co., 242 N.C. 466, 88 S.E.2d 138. Similarly, when a judgment of nonsuit is reversed, we refrain from stating the evidence. Goldston v. Randolph Machine Tool Co., 245 N.C. 226, 228, 95 S.E.2d 455; Pavone v. Merion, 242 N.C. 594, 595, 89 S.E.2d 108; Davis v. Southeastern Finance Co., 242 N.C. 233, 234, 87 S.E.2d 209; Harrison v. Kapp, 241 N.C. 408, 409, 85 S.E.2d 337.

Plaintiff pleaded and put in evidence certain sections of Chapter 2 of the Code of the City of Charlotte. Section 40(a) designates certain streets as through streets but North Smith is not so designated. Nor does it appear that North Smith was so designated by "any ordinance." Hence, Sections 40(a), 40(b) and 77(a) do not apply.

Section 77(b), in pertinent part, provides: "The city traffic engineer is hereby authorized to determine and designate intersections where particular hazard exists upon other than through streets and to determine whether vehicles shall stop at one or more entrances to any such stop intersection, and shall erect a stop sign at every such place where a stop is required, * *." (Our italics.) The authority conferred by Section 77(b) relates specifically to the erection of stop signs at one or more entrances at particular intersections where no through street is involved. The city traffic engineer, a witness for plaintiff, testified: "This intersection had been found to be one at which a special hazard existed and stop signs were first erected prior to 1954." Again: "The signs were placed on Eighth Street stopping all traffic entering Smith Street from Eighth."

G.S. § 20-158(a) relates to the duty of a motorist to stop in obedience thereto whenever signs notifying drivers to do so have been erected at the entrance to designated "main traveled or through highways." North Smith Street had not been so designated. Hence, G.S. § 20-158(a) does not apply.

We are advertent to decisions in other jurisdictions holding that where a street has been properly designated a boulevard, through street or arterial highway, and appropriate signs have been erected along the intersecting streets or roads, its status as a main thoroughfare is not lost merely because the sign on an intersecting street has become illegible, destroyed or otherwise removed. 60 C.J.S. Motor Vehicles § 350, p. 832; Connors v. Dobbs, 77 Ohio App. 247, 66 N.E.2d 546; 5A Am.Jur., Automobiles and Highway Traffic § 328, p. 434; Schmit v. Jansen, 247 Wis. 648, 20 N.W.2d 542, 162 A.L.R. 925; Annotation: 162 A.L.R. 927 et seq., and supplemental decisions. However, it is noted that each decision is based upon particular statutory or ordinance provisions. Compare Chambers v. Donaldson, 122 Cal. App. 2d 452, 264 P.2d 950, and California cases cited therein. It is noteworthy that in the cases referred to the main thoroughfare had been so designated by ordinance; and in most, but not all, the motorists had knowledge of its status.

North Smith had not been designated a through street by ordinance or otherwise. The mere fact that the city traffic engineer determined that a special hazard existed at this particular intersection did not convert North Smith or the portion thereof within this intersection into a through street. A driver on North Smith Street had no preferential rights because of the city traffic engineer's said determination. His preferential rights, if any, must be predicated upon the actual presence of a stop sign.

On January 21, 1957, a stop sign on the west side of Smith Street, facing eastbound traffic, was in place; but there was no stop sign on the east side of Smith Street. The metal post or portion thereof, which had supported a stop sign, was in place; but the sign itself was gone. Thus, no stop sign faced Moorefield as he approached the intersection. Two police officers, offered by plaintiff, testified that a stop sign had been there, but did not say when they had last seen it. A neighborhood resident, offered by defendants, testified that the stop sign had been down at least two months, and that it was found, after the collision, in the back yard of a nearby house.

Defendants excepted to the admission of testimony relating to the stop sign on the west side of Smith Street and to the metal post or portion thereof on the east side of Smith Street. It would appear that these exceptions were waived when further testimony with reference thereto was elicited by defendants' counsel. Price v. Gray, 246 N.C. 162, 97 S.E.2d 844. Be that as it may, testimony as to these physical facts was for consideration by the jury, together with evidence as to all other circumstances and conditions existing at the time and place of the collision, in relation to whether Moorefield exercised due care. "The degree of care required of a motorist is always controlled by and depends upon the place, circumstances, conditions, and surroundings of each particular case." 5A Am.Jur., Automobiles and Highway Traffic § 201.

These factual circumstances are noted: (1) The evidence tends to show that Moorefield had not been on Eighth Street before, that he was not familiar with the intersection; and that, as he approached Smith Street, he was looking for a street marker to ascertain whether he was approaching Cedar Street. (2) The evidence tends to show that Tucker, a route salesman, had traveled on North Smith Street two or three times a week for several years.

While evidence as to their presence was admissible, as indicated above, no legal duty to stop was imposed on Moorefield by the sign (facing eastbound traffic) on the west side of Smith Street, or by the metal post or portion thereof on the east side of Smith Street.

What legal significance, if any, did the fact that there had been a stop sign on the east side of Smith Street at this intersection, erected pursuant to the provisions of Section 77(b), have upon the relative rights and duties of Moorefield and Tucker? This is the crucial question.

In our view, the fact that there had been a stop sign on the east side of Smith Street, erected pursuant to the provisions of Section 77(b), imposed no legal duty on Moorefield. Indeed, absent evidence that Moorefield had knowledge or notice that such stop sign had been there, evidence as to such fact, and as to why and when the sign had been removed, was irrelevant; for Moorefield's negligence, if any, must be determined on the basis of conditions as they existed on the occasion of the collision.

Plaintiff contends that, in any event, the fact that a stop sign had been there was relevant as to whether Tucker was negligent. Her contentions are (1) that it may be fairly inferred that Tucker knew the stop sign had been there and (2) that it was for the jury to determine, with the burden of proof on defendants, whether it should be inferred that Tucker had knowledge or notice that the sign had been removed prior to January 21, 1957.

We do not think Tucker's legal duty depends upon whether he believed, and had reasonable grounds to believe, that there was a stop sign on the east side of Smith Street facing westbound traffic on Eighth. Tucker's negligence, if any, as well as the negligence of Moorefield, if any, must be determined on the basis of the actual conditions existing when they approached the intersection; and if, in fact, there was no stop sign on the east side of Smith Street on January 21, 1957, Tucker was not legally entitled to act as if it were there.

In instructing the jury, the court read G.S. § 20-158(a); then charged the jury that the evidence tended to show "that Smith Street where it intersects with 8th Street, has been by a city ordinance, or the evidence tends to show that Smith Street was called a dominant or main highway, whereas 8th Street was intersecting at the place in question, is what we refer to as a servient street"; and thereafter charged the jury as to the relative rights of motorists on dominant (through) highways and on servient (stop sign) highways. Defendants excepted to these and other instructions of like import. Defendants also excepted to the court's refusal to give instructions requested by defendants setting forth the law substantially as stated herein.

It seems appropriate to say that the crucial question was one of first impression in this jurisdiction and that, except for the error relating thereto, the trial was well conducted. However, having resolved the crucial question as indicated, the error with reference thereto materially prejudiced defendants and entitles them to a new trial.

New trial.