Fleming v. Drye , 253 N.C. 545 ( 1960 )

117 S.E.2d 416 (1960) 253 N.C. 545

Ralph H. FLEMING, Jr.
v.
George R. DRYE and James Clifford Drye.

No. 240.

Supreme Court of North Carolina.

December 14, 1960.

Leon Olive, Charlotte, for plaintiff, appellant.

Helms, Mulliss, McMillan & Johnston, Charlotte, for defendants, appellees.

MOORE, Justice.

Plaintiff assigns as error the failure of the court to explain to the jury the provisions of the reckless driving statute, G.S. § 20-140, and on the first issue apply them to the evidence with respect to defendants' conduct. This assignment is without merit for the simple reason that such evidence does not justify an inference of reckless driving. Furthermore, the complaint does not allege facts which, if proven, would constitute reckless driving on the part of the defendants; the allegation of reckless driving is largely a conclusion of the pleader stated in almost the exact words of the statute.

Plaintiff also excepts to the failure of the court, on the first issue, to instruct the jury with respect to the provisions of G.S. § 20-155 (b) that a vehicle in an intersection or junction and making a left or right turn shall not be deemed to have the right of way in preference to a vehicle approaching the intersection "unless the driver of said vehicle has given a plainly visible signal of intention to turn as required in section G.S. § 20-154." This exception is untenable for at least two reasons. The complaint does not allege a failure to give the signals required by statute. There is no evidence that defendants failed to give the signal; all the evidence on this subject is that the driver-defendant gave both a hand signal and mechanical signal. Where, from all the evidence before the court, the jury can draw but one inference, a new trial will not be granted for the court's failure to charge the jury upon the question. Brannon v. Sprinkle, 207 N.C. 398, 407, 177 S.E. 114.

Plaintiff's most serious assignment of error relates to three excerpts from the charge, applied by the court to the second and fifth issues. They are as follows:

"The defendant further insists and contends that the plaintiff has violated Section 20-155 of the General Statutes reading in pertinent part as follows: When two vehicles approach or enter an intersection 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 except as otherwise provided in 20-156, and except where the vehicle on the right is required to stop by a sign erected pursuant to the provisions of 20-156, and except where the vehicle on the right is required to yield the right of way by sign erected pursuant to the provisions."

"The driver of a vehicle on the left has the right of way if, when he reaches an intersection, the vehicle approaching on his right is far enough away so, in the exercise of reasonable care and prudence, he is justified in the belief he can pass over the intersection in safety. In such case, upon his entering the intersection, it becomes the duty of the driver of a vehicle approaching on the right to decrease speed and to keep his car under proper control and, if necessary, to stop and yield the right of way to avoid collision."

"If the defendant has satisfied you from the evidence and by its greater weight that the defendant was in the intersection first, that the vehicle approaching, that the plaintiff's vehicle approaching on the right was far enough away that, in the exercise of reasonable care and in safety, he was justified in believing he could pass over the intersection in safety, in that event he would have had the right of way; * * *."

A portion of the challenged instructions is based on G.S. § 20-155(a). It seems settled that where motorists are proceeding in opposite directions and meeting at an intersection G.S. § 20-155(a) has no application. Shoe v. Hood, 251 N.C. 719, 726, 112 S.E.2d 543; Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496. Where cars are meeting at an intersection and one intends to turn across the lane of travel of the other, G.S. § 20-155(b) and G.S. § 20-154(a) apply. In such case the driver making the turn is under duty to give a plainly visible signal of his intention to turn, G.S. § 20-155(b), and ascertain that such movement can be made in safety, G.S. § 20-154 (a). This, without regard to which vehicle entered the intersection first.

The challenged instructions are therefore erroneous in part. But, "The burden is upon the appellant not only to show error but also to make it appear that the result was materially affected thereby to his hurt." Garland v. Penegar, 235 N.C. 517, 519, 70 S.E.2d 486, 488. The court applied the instructions to the second and fifth issues. The jury did not reach the second issue. The verdict on the fifth issue was in favor of the plaintiff notwithstanding the erroneous instructions. Error in a charge on an issue is harmless if the jury answers the issue in favor of the appellant. Lookabill v. Regan, 247 N.C. 199, 202, 100 S.E.2d 521; Carolina Scenic Stages v. Lowther, 233 N.C. 555, 557, 64 S.E.2d 846. We do not indulge the presumption that the jury applied the questioned instructions to issues other than those directed by the court.

No error.