Howard v. Melvin , 262 N.C. 569 ( 1964 )

138 S.E.2d 238 (1964) 262 N.C. 569

Clyde Jim HOWARD
v.
Wiley Roger MELVIN.

No. 175.

Supreme Court of North Carolina.

October 14, 1964.

James F. Chesnutt and Miles B. Fowler, Clinton, for plaintiff appellant.

Nance, Barrington, Collier & Singleton, Fayetteville, for defendant appellee.

BOBBITT, Justice.

In approaching the intersection and at the moment of collision, defendant was proceeding north in his right (the east) traffic lane of NC #242. NC #242, the dominant highway, "was 21 feet 9 inches wide and marked with a center line." The collision occurred when the front wheels of the truck "were about center way of the north lane." No part of the truck had actually gone through the intersection.

Plaintiff's allegations, summarized, are that defendant was negligent in that he (1) failed to keep a proper lookout; (2) failed to yield the right of way; (3) operated his car at unlawful and excessive speed; and (4) failed to decrease speed when approaching the intersection.

The only witness who testified he saw defendant's car prior to and at the moment of collision was General Lee Willis. He was standing in front of his blacksmith shop located (approximately 75 feet east of NC #242) in the area at the southeast corner of the intersection. Willis testified: "Clyde Jim Howard came to the stop sign and stopped. * * * I was looking at the sign when he came to it, and I saw him stop. Then all at once I heard a car roaring, coming north, and heard a big fuss; a big noise. That car was running at high speed. * * * I saw it about 300 yards, I believe. After Clyde Jim Howard stopped, he pulled on out into the highway. I do not have an opinion as to how far away from the intersection Mr. Melvin's car was at the time Clyde Jim Howard entered the intersection. I saw the collision happen." Willis also testified: "After the car struck the truck, the truck back door was thrown open and Mr. Howard was thrown out. The truck then went into a side ditch. Mr. Melvin's car went north up the road for quite a ways and then stopped. His car went about as far as from here to the back of the courtroom before stopping, that is about 80 feet." With reference to the damage to the vehicles: Willis testified "the righthand front wheel (of the truck) was knocked out from under it" and the left front of defendant's car "was torn up, all the way back."

The evidence is silent as to skid marks.

According to all the evidence, plaintiff stopped the truck at the stop sign; and defendant, when approaching the intersection, had a clear view of the stop sign and of eastbound traffic approaching the stop sign and the intersection.

W. C. Pate, whose testimony relates primarily to conditions at the intersection, testified: "There is a stop sign on the west side of 242 at the southwest corner of the intersection which I measured to be 38 feet from the edge of the pavement on the west side." Plaintiff testified there was a ditch and a wide shoulder between the stop sign and the road; and, although he had not measured it, the stop sign, in his opinion, was not "38 feet from the pavement." Plaintiff testified he believed the distance between the stop sign and the main road to be 19 feet.

The reciprocal rights and duties of motorists when approaching an intersection from dominant and servient highways, particularly in relation to G.S. § 20-158(a), have been often stated. Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373.

The evidence discloses plaintiff stopped the truck at the stop sign, started again and proceeded slowly to and across the traffic lanes of NC #242. This evidence affords a basis for the contention that defendant had reasonable ground to assume that plaintiff knew he was approaching an intersecting dominant highway and would keep his truck under control and stop again before entering upon the traffic lanes of NC #242. However, we need not determine whether the evidence was sufficient to support a finding that negligence on the part of defendant was a proximate cause of the collision and plaintiff's injuries.

Irrespective of defendant's negligence, if any, unquestionably plaintiff's negligence was a proximate cause of the collision and plaintiff's injuries. This suffices to bar recovery herein.

G.S. § 20-158(a) did not require that plaintiff stop where the stop sign was located. It required that plaintiff, in obedience to the notice provided by the stop sign, bring his car to a full stop before entering NC #242 and to yield the right of way to vehicles approaching the intersection on NC #242. Clifton v. Turner, 257 N.C. 92, 96, 125 S.E.2d 339; Edwards v. Vaughn, 238 N.C. 89, 93, 76 S.E.2d 359. "This * * * statute not only requires the driver on the servient highway or street to stop, but such driver is further required, after stopping, to exercise due care to see that he may enter or cross the dominant highway or street in safety before entering thereon." Jordan v. Blackwelder, 250 N.C. 189, 193, 108 S.E. 2d 429, 432, and cases cited.

According to plaintiff's testimony: When he stopped, his seat in the truck was even with the stop sign post and his eyes were about five feet above the ground. Nothing obstructed his view and nothing was in sight on NC #242 (south) to his right. He "could see to (his) right 75 or 80 yards, perhaps 100 yards." Plaintiff testified: "There wasn't anything to keep me from seeing automobiles coming from towards Salemburg for a distance of at least onehalf a mile at that time." Other evidence was in substantial accord. Pate testified: "There is nothing to obstruct the visibility of cars using 242 proceeding north as to vehicles entering 242 from 1414 for a good 1/4 of a mile." Again: "Looking across that intersection from 1414 to 242, south, the drivers have equal opportunity to see." Plaintiff testified: "I never looked after I stopped at the stop sign. I did not look back to the right or left again." Plaintiff did not at any time see defendant's car.

The only conclusion that may be reasonably drawn from the evidence is that plaintiff entered upon and attempted to cross NC #242 when defendant's approaching car was in close proximity to the intersection; that plaintiff, by the exercise of due care, could have but did not see defendant's approaching car; that plaintiff, failing to see what he should have seen, negligently drove the truck directly across the path of defendant's approaching car; and that such negligence on the part of plaintiff was a proximate cause of the collision and plaintiff's injuries.

Decision that plaintiff's evidence discloses contributory negligence as a matter of law is in accord with the following: Edwards v. Vaughn, supra, and cases cited; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Edens v. Carolina Freight Carriers Corp., 247 N.C. 391, 100 S.E.2d 878; Clayton v. Rimmer, 262 N.C. 302, 136 S.E.2d 562.

Affirmed.