Kelly v. Ashburn , 256 N.C. 338 ( 1962 )

123 S.E.2d 775 (1962) 256 N.C. 338

Joe Halford KELLY
v.
Melvin Washington ASHBURN.

No. 527.

Supreme Court of North Carolina.

February 2, 1962.

Bailey & Dixon, by Wright T. Dixon, Jr., Raleigh, for plaintiff-appellant.

Gavin, Jackson & Williams, by E. L. Gavin, Sanford, for defendant-appellee.

HIGGINS, Justice.

The State law, G.S. § 20-158(a), provides: "The State Highway Commission, with reference to State Highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles to come to full stop before entering or crossing such designated highway * * *." (emphasis added)

By the terms of the statute the erection of stop signs on an intersecting highway or street is a method of giving the public notice that traffic on one is favored over the other and that a motorist facing a stop sign must yield. Stop signs at intersections are in such general use and their function so well known that a motorist, in the absence of notice to the contrary, may presume they were erected by lawful authority. Jackson v. McCoury, 247 N.C. 502, 101 S.E.2d 377; Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514; Johnson v. Bell, 234 N.C. 222, 67 S.E.2d 658. The presumption is one of fact and, like other presumptions of fact, is rebuttable.

In this case the evidence permits the inference the plaintiff knew Woodland was surfaced by the State through the City of Sanford. Hughes was built by the city as an intersecting street on which stop signs were erected. The plaintiff testified he knew of these signs and relied on them as giving him the right of way. At the time of the accident, and unknown to him, the sign on the eastern approach was not in place. It was, however, restored after the accident.

This evidence is sufficient to present the question whether as to the intersection on the occasion of the accident the plaintiff had the right to assume that traffic from the east on Hughes would yield. Plaintiff's conduct is to be judged by the rule of the prudent man; that is, by that which a man of ordinary prudence would do under the same or similar circumstances when charged with like duty. These questions arise on the issue of negligence.

If the jury should find the stop signs were erected on Hughes Street by proper authority and the plaintiff had neither actual nor constructive notice the one on the eastern approach was not in place, its absence would not take away his right to treat Woodland as the preferred street. "A motorist proceeding along a favored highway is entitled to assume that traffic on an intersecting secondary highway will yield him the right of way, and the effect of his right to rely on this assumption is not lost because warning signs have been misplaced or removed, * * *." 162 A.L.R. 927; 58 A.L.R. 1197; 81 A.L.R. 185; 60 C.J.S. Motor Vehicles § 350, p. 832; Bell v. Crook, 168 Neb. 685, 97 N.W.2d 352, 74 A.L.R. 2d 223; Schmit v. Jansen, 247 Wis. 648, 20 N.W.2d 542, 162 A.L.R. 925; Lyle v. Fiorito, 187 Wash. 537, 60 P.2d 709; Jones v. McCullough, 148 Kan. 561, 83 P.2d 669; Titus v. Braidfoot, 226 Ala. 21, 145 So. 423; Welch v. Canton City Lines, 142 Ohio St. 166, 50 N.E.2d 343; King v. Gold, 224 Iowa 890, 276 N.W. 774; Austinson v. Kilpatrick, 105 N.W.2d 258 (N.D.1960); Seyfer v. Gateway Baking Co., D.C., 159 F. Supp. 167, 177.

What is said here relates to the plaintiff's rights, duties, and liabilities in traversing the intersection. The defendant was not familiar with the intersection. He was on the plaintiff's right and was not confronted by stop sign notice that Woodland was the preferred street. His conduct likewise must be judged by the rule of the prudent man, by that which a man of ordinary prudence would do under the same or similar circumstances, when charged with like duty. Each party's responsibility is to be judged in the light of conditions confronting him.

The rule with respect to the rights of motorists to rely on stop signs is stated in Blashfield 2, Perm. Ed., Cyclopedia of Automobile Law and Practice, § 998, p. 242:

"That the usual marker or sign erected to inform travelers of the superior character of an intersecting road is temporarily removed or destroyed does not change the character of the road nor affect the usual incidents appropriate to such road, such as its conferring the right of way upon traffic flowing along it as against that on intersecting roads, although in a case where a motorist, approaching an arterial highway from the right, did not see the stop sign because the edge had been turned toward him, it was held that a person proceeding in the exercise of ordinary care cannot be held negligent in failing to stop at an intersection with an arterial highway with which he is not familiar and which is not properly marked with a lawful stop sign.

"Conversely, where signs or markers have been posted by the proper authorities to the effect that a particular road is of superior classification, it will be regarded as being such so far as concerns the question of right of way, even though not legally established as a road within that particular classification. A driver has the right to assume, unless he knew otherwise, that a sign has been erected by the proper authority."

After all, responsibility for an accident must be determined upon the basis of the particular facts of each case. One party, or both, or neither, may have acted in accordance with the rule of the prudent man. Consequently, a collision at an intersection where a stop sign has been erected and then removed or defaced may result from the negligence of one party, or both, or neither. The court's charge in this case was a peremptory instruction to find the plaintiff was negligent by reason of his failure to yield to the defendant on his right.

The court's charge was an amplification of what this Court said in Tucker v. Moorefield, 250 N.C. 340, 108 S.E.2d 637. The rule herein stated is recognized in that case; however, decision was based upon the premise the evidence affirmatively showed the sign to have been erected by the city engineer on account of a special hazard and not by either the State Highway Commission or the local authorities (the governing board of the city) as specified in G.S. § 20-158(a), leaving G.S. § 20-155(a) applicable. In Tucker v. Moorefield, the Court said: "The mere fact that the city traffic engineer determined that a special hazard existed at this particular intersection did not convert North Smith Street or the portion thereof within the intersection into a through street. A driver on North Smith Street had no preferential rights because of the city traffic engineer's said determination."

In the case before us the evidence was sufficient to present the question whether the plaintiff, under the circumstances that confronted him, was warranted in assuming he had the right of way through the intersection. The peremptory instruction to the contrary was prejudicial error for which we order a

New Trial.

BOBBITT, Justice (dissenting).

In approaching and entering the intersection, plaintiff was driving north on Woodland and defendant was driving west on Hughes. Hence, defendant approached and entered the intersection from plaintiff's right.

It was the duty of the presiding judge to instruct the jury as to the relative rights of plaintiff and defendant in respect of right of way with reference to this intersection at the time of the collision.

G.S. § 20-155(a) provides: "When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in § 20-156 and except where the vehicle on the right is required to stop by a sign erected pursuant to the provisions of § 20-158 and except where the vehicle on the right is required to yield the right-of-way by a sign erected pursuant to the provisions of § 20-158.1." (My italics) G.S. § 20-156 and G.S. § 20-158.1 are not pertinent to the present factual situation.

When the collision occurred, no stop sign "erected pursuant to the provisions of § 20-158," faced westbound traffic on Hughes Street. Nor was there evidence defendant knew a stop sign had been there.

The judge instructed the jury, if plaintiff and defendant approached and entered the intersection at approximately the same time, it was plaintiff's duty, by reason of the quoted statutory provision, to yield the right of way to the vehicle approaching from his right. Under the evidence, this instruction, in my opinion, was in accord with our decision and opinion in Tucker v. Moorefield, 250 N.C. 340, 108 S.E.2d 637.

A police officer testified that Woodland and Hughes were paved streets; that Woodland was "22 feet wide at that point"; that he did not know whether Hughes was "narrower or wider than Woodland"; that Woodland had been paved "a long time"; and that Hughes had been "recently paved." The city clerk testified: "Hughes Street from Lee Avenue up to Woodland was paved by the City and assessed. Woodland Avenue as best I remember was paved by the State." (My italics) Apart from the officer's testimony that Hughes had been "recently paved," I find no evidence as to when Hughes was paved. Nor do I find evidence that stop signs were erected after Hughes was paved.

There was evidence that stop signs had been erected, facing eastbound and westbound traffic on Hughes Street. When they were erected does not appear. Plaintiff testified he had observed these signs; that he had been riding up and down Woodland ever since he had been driving; that he was twenty-six years old and got his license when he was sixteen. He testified: "As to how long the sign had been there before it was taken down, it had been on the east side of Hughes Street for a couple or a number of years." (Note: I assume plaintiff intended to say there had been a stop sign on the north side of Hughes, facing westbound traffic thereon.) Again: "As I approached the intersection I thought there was a stop sign on Hughes Street."

There was no evidence as to when or by whom the stop sign that had faced westbound traffic on Hughes was removed. Nor was there evidence as to when such stop sign was last observed by plaintiff or anyone else.

During the trial, plaintiff moved for leave to amend his complaint by pleading portions of an ordinance of the City of Sanford, identified by the city clerk, referred to as follows:

"Section 6.2. This is entitled ``STOP, BEFORE ENTERING CERTAIN STREET INTERSECTIONS. Those intersections described in Schedule 10, attached hereto and made a part hereof, are hereby declared to be stop intersections when entered from the streets first named, and when stop signs are placed, erected or installed at such intersections every driver of a vehicle or street car shall stop in obedience to such sign before entering the intersection, and shall not proceed into or across the through street until he has first determined that no conflict with traffic will be involved.'"

"Section 10, entitled ``INTERSECTION AT WHICH STOP IS REQUIRED BEFORE ENTERING'—it says ``Hughes at Woodland.'"

Plaintiff's said motion for leave to amend was denied. However, it is noted that this ordinance does not purport to designate Woodland as a boulevard, through street or arterial highway. It relates to a single intersection. It does not appear when this ordinance was adopted.

Under the rule adopted by the Court for determination as to whether plaintiff was negligent in failing to yield the right of way, the burden of proof, in my opinion, is on plaintiff to establish that he believed, and had reasonable grounds to believe, that there was a stop sign facing westbound traffic on Hughes on the occasion of the collision. Absent evidence as to when plaintiff had last seen the sign and as to how long before the collision the sign had been removed, plaintiff's evidence, in my opinion, is insufficient to entitle him to the benefit of the rule adopted by the Court. In my opinion, the fact there had been a stop sign facing westbound traffic on Hughes and plaintiff had seen it, is, standing alone, insufficient to support a finding that plaintiff had reasonable grounds to believe it was there on the occasion of the collision.

In Tucker v. Moorefield, supra, the sign had been removed at least two months before the date of the collision; and Tucker, a route salesman, traveled North Smith Street two or three times a week.

Had plaintiff, traveling on Woodland, passed this intersection many times after the stop sign had been removed? It is noteworthy that a licensed motorist must be able to identify a standard stop sign by its octagonal shape; and, absent unusual conditions, a motorist can see whether a stop sign faces traffic approaching an intersection from his right.