Anderson v. Webb , 267 N.C. 745 ( 1966 )

148 S.E.2d 846 (1966) 267 N.C. 745

Alice B. ANDERSON, Administratrix c. t. a. of the Estate of Charles R. Biggs, Sr., Deceased,
v.
Robert G. WEBB, Administrator of the Estate of Cullen Daniel Nichols, Deceased, and Cullen Sims Nichols.

No. 287.

Supreme Court of North Carolina.

July 6, 1966.

Hoyle, Boone, Dees & Johnson, by J. Sam Johnson, Jr., Greensboro, for plaintiff appellant.

Gardner, Connor & Lee, Lucas, Rand, Rose & Morris, by J. M. Reece, Wilson, for defendant appellees.

SHARP, Justice.

Considering the evidence in the light most favorable to plaintiff—as we are required to do in passing upon a motion for nonsuit, 4 Strong, N.C. Index, Trial § 21 (1961)—it is sufficient to establish that plaintiff's intestate Biggs was operating the Valiant in an easterly direction; that defendant's intestate Danny Nichols was driving west in the Chevrolet; and that Nichols, traveling to his left of the center of the highway, collided with the Biggs automobile in its lane of travel.

Plaintiff's theory of this case is that Danny Nichols, operating his vehicle at a speed greater than was reasonable and prudent considering the rain and wet pavement, lost control of his car on a sharp curve to his right and skidded 100 feet into the Biggs automobile on the south side of the road. The only evidence with reference to this curve is found in the testimony of the patrolman, who said: "The condition of the road to the east of this collision is a sharp curve. The curve goes to the north." The record, therefore, fails to disclose the distance from the curve to the point of collision. For this reason, defendant-appellee argues that plaintiff may not suggest that the curve had any relation to the accident. He further argues that the skidding of an automobile is not in itself evidence of negligence, Hardee v. York, 262 N.C. 237, 136 S.E.2d 582; Springs v. Doll, 197 N.C. 240, 148 S.E. 251, and that there is no evidence that Danny Nichols, prior to skidding, was guilty of negligence which would have caused his car to skid. The flaw in this argument is that the skid marks, which the witness Joyner described, began on the south side of the highway in the Biggs' lane of travel. Thus, at the time Nichols began to skid, his vehicle was already upon the left half of the highway. The distance of the curve from the point of collision would not appear to be material, for it was Danny Nichols' duty to drive on his right half of the roadway at all times—on the straightway and, a fortiori, in a curve.

G.S. § 20-146, except in certain situations not applicable here, provides that, "Upon all roadways of sufficient width a vehicle shall be driven upon the right half of the roadway. * * *" G.S. § 20-148 requires the drivers of vehicles proceeding in opposite directions to "pass each other to the right, each giving to the other at least one-half of the main-traveled portion of the roadway as nearly as possible." A violation of either of these statutes is negligence per se, and, when the proximate cause of injury, constitutes actionable negligence. McGinnis v. Robinson, 258 N.C. 264, 128 S.E.2d 608; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Grimes v. Carolina Coach Co., 203 N.C. 605, 166 S.E. 599.

When a plaintiff suing to recover damages for injuries sustained in a collision offers evidence tending to show that the collision occurred when the defendant was driving to his left of the center of the highway, such evidence makes out a prima facie case of actionable negligence. Spiegelman v. Birch, 204 Va. 96, 129 S.E.2d 119; Evansville Container Corp. v. McDonald, 132 F.2d 80 (6th Cir.); Brown v. Head, 158 So. 2d 442 (La.App.); Miller v. Mullenix, 227 Md. 229, 176 A.2d 203. The defendant, of course, may rebut the inference arising from such evidence by showing that he was on the wrong side of the road from a cause other than his own negligence.

True, this case is a repetitious example of a collision in which there were no survivors and to which there were no eyewitnesses, but this situation does not change the rule of law. Plaintiff, having made out a prima facie case of actionable negligence against defendant's intestate, was entitled to have the jury pass upon the evidence. The judgment of nonsuit is

Reversed.

MOORE, J., not sitting.