Forgy v. Schwartz , 262 N.C. 185 ( 1964 )

136 S.E.2d 668 (1964) 262 N.C. 185

George L. FORGY
v.
Mrs. Evelyn K. SCHWARTZ and Henry Bane, Administrator of the Estate of John Edward Mitchell, Deceased.
Virginia Davis FORGY
v.
Mrs. Evelyn K. SCHWARTZ and Henry Bane, Administrator of the Estate of John Edward Mitchell, Deceased.
Joy Lee FORGY, by her Next Friend Virginia Davis Forgy,
v.
Mrs. Evelyn K. SCHWARTZ and Henry Bane, Administrator of the Estate of John Edward Mitchell, Deceased.
Rose KLUGERMAN
v.
Mrs. Evelyn K. SCHWARTZ and Henry Bane, Administrator of the Estate of John Edward Mitchell, Deceased.
William R. WINDERS, Ancillary Administrator of the Estate of Nathan Schwartz, Deceased,
v.
Mrs. Evelyn K. SCHWARTZ and Henry Bane, Administrator of the Estate of John Edward Mitchell, Deceased.

No. 668.

Supreme Court of North Carolina.

June 12, 1964.

Bryant, Lipton, Bryant & Battle, Durham, for plaintiff appellees.

Maupin, Taylor & Ellis, Raleigh, for Evelyn K. Schwartz, defendant appellant.

SHARP, Justice.

That the reckless driving of defendant Bane's intestate, John Edward Mitchell, proximately caused the head-on collision between the Buick and the Schwartz station wagon is not contested. The question is whether there is any evidence tending to show that defendant Schwartz, by the exercise of reasonable care, could have avoided the consequences of Mitchell's negligence after he drove his automobile into her lane of travel. A motorist, although in his proper lane, has the duty to avoid colliding with another vehicle which comes into his path from the opposite direction if he can do so in the exercise of due care. From the time the motorist sees, or in the exercise of ordinary care should see, that the approaching driver cannot or will not return to his side of the road, it is encumbent upon him to exercise due diligence under the conditions then existing to prevent an accident. Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383. When possible, it is his duty to slow down, turn from a direct line, drive off the highway, stop, or take such other evasive action as a person of ordinary prudence would take under similar circumstances to avoid a collision. If he neglects to do so, and such failure is a contributing cause of the resulting collision, he is liable as a joint tortfeasor to those who are injured as a consequence of his negligence. Jones v. C. B. Atkins Co., 259 N.C. 655, 131 S.E.2d 371; Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734; Johnson v. Lewis, 251 N.C. 797, 112 S.E.2d 512; Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627. Kapla v. Lehti, 225 Minn. 325, 30 N.W.2d 685; 8 Am.Jur.2d, Automobiles and Highway Traffic § 762.

The appealing defendant, Mrs. Schwartz, proceeding in her proper lane of travel at a lawful rate of speed, was suddenly confronted by an emergency caused solely by the gross negligence of Mitchell. Her conduct, therefore, must be evaluated in the light of the rule that one who is required to act suddenly in an emergency, without opportunity to reason or to reflect, is not held by the law to the wisest choice of conduct but only to such choice as a person of ordinary care and prudence similarly situated would have made. Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710; Patterson v. Ritchie, 202 N.C. 725, 164 S.E. 117; 60 C.J.S. Motor Vehicles § 257. The law recognizes that the sudden appearance of an automobile, speeding toward a driver in his lane of travel, will create such excitement and apprehension of impending doom in the ordinary prudent man that it may paralyze his reactions or cause him to make an error of judgment. 7 Am.Jur. 2d, Automobiles and Highway Traffic § 359. "Some allowance must be made for the excitement of the moment and strain on the nerves." Crowe v. Crowe, 259 N.C. 55, 129 S.E.2d 585. When "the unexpected occurs, time must be allowed a driver, put in peril without his fault, to appreciate the danger and form a judgment of how he will meet it." Torbert v. Smith's Estate, 250 Mich. 62, 229 N.W. 406.

The cases reveal that motorists who have been confronted by an automobile approaching in the wrong lane have, on occasions, (1) continued straight ahead, (2) turned to the right, (3) turned to the left, and (4) stopped. 8 Am.Jur.2d, Automobiles and Highway Traffic §§ 763-766. A lengthy annotation, Collision—Approaching Car— Wrong Lane, 47 A.L.R. 2d 6, collects the cases. In applying the doctrine of sudden emergency, the courts have not been inclined to weigh in "golden scales" the conduct of the motorist who has acted under the excited impulse of sudden panic induced by the negligence of the other motorist.

In Hoehne v. Mittelstadt, 252 Wis. 170, 31 N.W.2d 150, the defendant, driving on his proper side of the road on a foggy morning, was suddenly confronted in his lane of travel by the automobile of one Orlich approaching from the opposite direction and attempting to pass a truck. Orlich drove farther to his left; defendant continued straight ahead and struck the right front of the Orlich vehicle. Plaintiffs, passengers in the Orlich car, argued that defendant had two and a half seconds in which to slow down and if he had done so Orlich would have made it into the ditch and averted the accident. On these facts the court said: "We think that the emergency rule when properly applied must likewise excuse inaction on the part of the innocent driver in his proper lane of traffic when suddenly confronted with an automobile on the wrong side of the road." This statement was quoted with approval in Griffy v. Havey, 201 F.2d 501 (7th Cir.) and in Feinsinger v. Bard, 195 F.2d 45 (7th Cir.). In the latter case, plaintiff, a passenger in the car of W, was injured in a headon collision which occurred when the automobile of B came into W's lane of travel on a snow-covered highway. Plaintiff sued the estates of both drivers. He testified that the car of B was first seen approaching in the wrong lane when it was about seven hundred feet away and traveling "a good deal faster" than the car of W. Thereafter, neither B nor W ever veered from a straight course, and W never applied his brakes. Seven seconds elapsed before the collision. In reversing a judgment against W, the court said: "In the first place, there is a presumption that the deceased Wedell exercised due care and caution for his own safety. * * * If there was any negligence on his part, it must have been as to control and management and not as to lookout. * * * It is argued that during that time he could have applied his brakes or he could have turned either to the left or to the right. As to whether the collision could have been avoided by following any of such suggestions is purely a matter of guess and speculation." However, in appraising W's situation the court took into consideration one factor which is not present in the instant case. W had the right to assume that the B car would return to its proper side of the road. Here, Mitchell was passing a line of cars and there is evidence that he did not have any "place to go."

According to the estimates of the Forgys, Mrs. Schwartz had a maximum of only five or six seconds in which to form a judgment and take evasive action. She probably had less than five seconds.

It is rarely safe to predicate negligence solely on a strict mathematical computation of time, distance, and rate of speed for the problems of human conduct cannot be solved by reference to a slide rule. This is especially true when, as here, the measurements upon which they are based were made almost four years after the accident. The initial observations and estimates of the persons involved were necessarily made under great stress and apprehension— despite Mr. Forgy's measured description of his activities during the seconds which intervened between his discovery of the peril and the moment of collision. However, for the purpose of passing on the motion for nonsuit here, they must be considered as accurate.

Whether Mitchell appeared in the northbound lane six hundred feet or seven hundred and fifty feet from the Schwartz automobile he was driving at a speed in excess of sixty miles per hour—possibly at seventy-five miles per hour. He made no effort to slow down but Mrs. Schwartz, traveling at fifty miles per hour, applied her brakes and perhaps slowed to forty or forty-five miles per hour. Mathematically, between four and five seconds only could have elapsed. At seventy miles per hour a vehicle goes one hundred and three feet per second; at forty-five miles per hour, sixty-six feet a second. Hence, taking the median speeds, the distance separating the two vehicles was being closed at approximately one hundred and sixty-nine feet per second. Under either of Mr. Forgy's estimates of distance, Mrs. Schwartz had a maximum of five seconds in which to form a judgment and take evasive action. She probably had as little as four.

One textwriter has said, "The instinctive reaction of a motorist meeting another motorist approaching on the wrong side of the road is to apply his brakes." 8 Am.Jur.2d, Automobiles and Highway Traffic § 766. Barnhill, J. (later C. J.) said in Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337: "It is a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle." The evidence is that Mrs. Schwartz did both. The witnesses testified that she applied brakes. The skid marks on the highway, those "physical facts which speak louder than some of the witnesses," Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, show that she also turned to the right. Plaintiffs complain that she did not turn quickly enough but, considering the acute emergency which faced her, who can say that she failed to exercise ordinary care in the operation of her vehicle during the four to five seconds which determine the destiny of this case?

It may have been that Mrs. Schwartz could have driven farther to the right faster than she did; that at the same time she should have applied brakes with more force; or that she straightway should have "taken to the ditch." However, the faster a car is going the greater the risk that a sharp turn will upset it. We do not judge her conduct by hindsight, nor can we say that less disastrous consequences would have resulted had she driven off the pavement at fifty miles per hour. In any event, she was headed off the road when time and distance ran out on her.

If we were to concede both a delayed reaction and an error of judgment on the part of Mrs. Schwartz when she was suddenly brought face to face with unexpected danger, it is our opinion that her conduct in the acute emergency did not constitute actionable negligence. The evidence fails to show that an ordinary prudent person would have reacted more quickly or used better judgment under the same circumstances. Jones v. C. B. Atkins Co., supra; Patterson v. Ritchie, 202 N.C. 725, 164 S.E. 117. The defendant Schwartz' motions for judgment as of nonsuit should have been allowed.

The judgments of nonsuit eliminate the questions which would have arisen in the action of Winders, Administrator of Nathan Schwartz, had he made out a case of actionable negligence against Mrs. Schwartz for the pain and suffering and the wrongful death of his intestate. As his widow, the defendant Schwartz is the chief beneficiary of his estate. G.S. § 29-14(3). These questions were not raised by either party, but had she shared the responsibility for his injuries and wrongful death the law would not permit her enrichment by her own negligence. Dixon v. Briley, 253 N.C. 807, 117 S.E.2d 747; Davenport v. Patrick, 227 N.C. 686, 44 S.E.2d 203; Pearson v. National Manufacture & Stores Corporation, 219 N.C. 717, 14 S.E.2d 811; Davis v. Seaboard Air Line R. R., 136 N.C. 115, 48 S.E. 591.

The judgments are

Reversed.