Wrenn v. Waters , 277 N.C. 337 ( 1970 )

177 S.E.2d 284 (1970) 277 N.C. 337

Dorothy M. WRENN
v.
Herbert G. WATERS.

No. 47.

Supreme Court of North Carolina.

November 18, 1970.

Smith, Leach, Anderson & Dorsett, and Hollowell & Ragsdale by William L. Ragsdale, Raleigh, for plaintiff appellant.

Teague, Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendant appellee.

HUSKINS, Justice:

On the contributory negligence issue the court charged the jury as follows:

"The law requires a driver to exercise due care in entering an intersection, even though she is entering on the green light. She must exercise the care that a reasonably prudent person would exercise, under the circumstances, taking into consideration the possibility that someone might come in the intersection in violation of the rule, coming in the intersection on the red light."

This constitutes the entire charge on the second issue. Plaintiff contends this charge is inadequate, incomplete and prejudicial and assigns same as error.

The leading case in North Carolina on the duty of a motorist entering an intersection is Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25 (1952). In that case the Court, speaking through Justice Ervin, overruled earlier cases which held in effect that "the right to rely on a right of way created by positive legislation and to assume that other users of the highway will obey the law and exercise ordinary care is restricted to those motorists who are themselves absolutely free from negligence." It was said that the cases supporting that principle "constitute a negation of the basic concept that since every person necessarily acts on appearances, his conduct in a given situation must be judged in the light of all the circumstances surrounding him at the time."

Four years later in Wright v. Pegram, 244 N.C. 45, 92 S.E.2d 416 (1956), Justice Higgins supplied the much-cited general rule which is grounded on the principles set out in Cox:

"We are not unmindful of the fact that a motorist facing a green light as he approaches and enters an intersection is under the continuing obligation to maintain a proper lookout, to keep his vehicle under reasonable control, and to operate it at such speed and in such manner as not to endanger or be likely to endanger others upon the highway. Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354 [1947]. Nevertheless, in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25 [1952]."

This language is quoted with approval in Currin v. Williams, 248 N.C. 32, 102 S.E.2d 455 (1958), and in Galloway v. Hartman, 271 N.C. 372, 156 S.E.2d 727 (1967). See also Troxler v. Motor Lines, 240 N.C. 420, 82 S.E.2d 342 (1954); Hyder v. Asheville Storage Battery Co., Inc., 242 N.C. 553, 89 S.E.2d 124 (1955); and Jones v. Schaffer, 252 N.C. 368, 114 S.E.2d 105 (1960), all of which support this view; and 3 Blashfield Automobile Law and Practice (3rd Ed., 1965) § 114.42, where supporting cases from other jurisdictions are collected.

When the instant charge on contributory negligence is laid alongside the language of Wright v. Pegram, supra, its deficiency is quite apparent. The charge was correct as far as it went, but it failed to go far enough. The able and conscientious trial judge should have further instructed the jury that in the absence of anything which gives or should give notice to the contrary, a motorist has the right to assume and to act on the assumption that opposing drivers will observe the rules of the road and stop in obedience to a traffic signal. Failure to so charge was error; hence this assignment must be sustained. We put aside the remaining assignments without discussion.

Error in the respect indicated necessitates a new trial. The case is remanded to the Court of Appeals where it will be certified to the Superior Court of Wake County for a new trial in accordance with this opinion.

Error and remanded.