Adams v. Godwin , 252 N.C. 471 ( 1960 )

114 S.E.2d 76 (1960) 252 N.C. 471

Flora Turnage ADAMS
v.
Samuel M. GODWIN, D/B/A Godwin Sales Company.

No. 523.

Supreme Court of North Carolina.

May 4, 1960.

Canaday & Canaday, by C. C. Canaday, Jr., Smithfield, for defendant, appellant.

R. E. Batton, Levinson & Levinson, by L. L. Levinson, Smithfield, for plaintiff, appellee.

HIGGINS, Justice.

There is some discrepancy in the evidence whether the collision occurred near or in the intersection. The plaintiff's evidence placed the point of contact between the vehicles at about 30 feet west of the intersection. The defendant's evidence placed it in the intersection. The plaintiff's vehicle skidded and turned over after crossing Fayetteville Street. The defendant's truck stopped in the intersection. It is agreed that no signs had been erected indicating an intersection. All the evidence was to the effect that the streets crossed within the corporate limits of the Town of Benson.

G.S. § 20-150(c) provides: "The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any steam or electric railway grade crossing nor at any intersection of highway unless permitted so to do by a traffic or police officer. For the purposes of this section the word ``intersection of highway' shall be defined and limited to intersections designated and marked by the State Highway Commission by appropriate signs, and street intersections in cities and towns." (Emphasis added.) The meaning of the section is that one motorist may not pass another going in the same direction under either of two conditions: (1) At any place designated and marked by the State Highway Commission as an intersection; (2) at any street intersection in any city or town. Donivant v. Swaim, 229 N.C. 114, 47 S.E.2d 707; Cole v. Fletcher Lumber Co., 230 N. C. 616, 55 S.E.2d 86; Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632.

On the issue of contributory negligence the defendant was entitled to a charge that if the jury should find by the greater weight of the evidence, the burden being on the defendant, that the plaintiff attempted to pass the defendant's truck going in the same direction at a public street intersection, and should further find that the intersection was located within the corporate limits of the Town of Benson, her attempt so to pass would be negligence on her part; and if the jury should further find that such negligence was one of the proximate causes of her injury and damage, then the issue of contributory negligence should be answered, yes; otherwise, no. Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543.

The court actually charged: "I instruct you, ladies and gentlemen, that if you are satisfied by the greater weight of the evidence that there were no signs put there, no appropriate signs put there by the State Highway Commission, then it would not constitute an intersection within the meaning of that statute and would place no duty upon the driver of the Edsel automobile."

The statute required the plaintiff to observe the street intersection in the Town of Benson whether marked or unmarked. The charge permitted her to ignore the intersection if unmarked. Assignment of Error No. 2 based on Exception No. 2 challenges the instruction given. For the error assigned, the defendant is entitled to a

New Trial.