Wilson v. Camp , 249 N.C. 754 ( 1959 )

107 S.E.2d 743 (1959) 249 N.C. 754

Jerry O. WILSON
v.
Jess Willard CAMP and Billie Lee Camp.

No. 171.

Supreme Court of North Carolina.

March 25, 1959.

Childers & Fowler, by Henry L. Fowler, Jr., Mount Holly, for plaintiff, appellant.

Mullen, Holland & Cooke, by James Mullen, Gastonia, for defendants, appellees.

HIGGINS, Justice.

The findings of negligence against the defendants and contributory negligence against the plaintiff settled the controversy. Garmon v. Thomas, 241 N.C. 412, 85 S.E.2d 589; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730. Last clear chance not being involved, the plaintiff must remove the bar of contributory negligence in order to get back into court. He can do this only by showing prejudicial error on that issue. Errors, if committed on other issues, are nonprejudicial. We make this statement not suggesting other errors appear, but by way of explanation of our failure to discuss the assignments with respect to them.

By assignment of error No. 5, the plaintiff contends the court committed error in submitting the issue of contributory negligence because of the lack of evidence to support it. In passing on the question, we must take the evidence in the light most favorable to the defendant, disregarding that which is favorable to the plaintiff. "If different inferences may be drawn from the evidence on the issue of contributory negligence, some favorable to plaintiff and others to the defendant, it is a case for the jury to determine." Bell v. Maxwell, 246 N.C. 257, 98 S.E.2d 33, 36; Gilreath v. Silverman, 245 N.C. 51, 95 S.E.2d 107; Battle v. Cleave, 179 N.C. 112, 101 S.E. 555.

In this case, Camp testified he waited at the light for two cars to pass, saw no other traffic, and while he was in the act of crossing the two north traffic lanes to enter the McAdenville Road, the plaintiff's automobile crossed the hill at high speed and crashed into him before he was able to clear the intersection. His witnesses, Talley and Johnston, testified the dark Chevrolet did not reduce speed of 70 miles or more per hour. The plaintiff admitted he did not reduce speed for the intersection; that he saw the defendants' automobile stopped there, "getting ready to make a left-hand turn * * * I observed this car before the collision a couple of seconds. When I first saw the Camp car he was parked in the outside lane making a left turn."

The fact that defendant, from his stationary position in one of the south lanes, had time to cross over the inside lane and into the outside one in front of plaintiff, permits the inference the defendant was first in the intersection. It permits the inference that plaintiff's speed was so great that he could not stop. The physical evidence with respect to the position of the vehicles at the time of and after the collision, and the damage to them offer nothing to refute these inferences. We conclude, therefore, the evidence of contributory negligence was sufficient to go to the jury. Assignment of error No. 5 is not sustained.

By assignments of error Nos. 1 and 2, the plaintiff contends the court committed error in admitting the evidence of Talley and Johnston as to the speed of the automobile which passed them less than onequarter of a mile from the scene of the accident. He relies on Barnes v. Teer, 218 N.C. 122, 10 S.E.2d 614, as authority for his position. In that case, however, the evidence of speed was excluded because the observer saw the vehicle three or four miles from the scene of the accident. Here, the speed continued until the car passed out of sight at the blinker warning lights 400 feet from the accident. The evidence of Talley and Johnston was clearly admissible. State v. Peterson, 212 N.C. 758, 194 S.E. 498; Hicks v. Love, 201 N.C. 773, 161 S.E. 394; State v. Leonard, 195 N.C. 242, 141 S.E. 736.

By his assignments Nos. 6, 7, and 8, the plaintiff challenges the charge relating to the respective duties of motorists at intersections. Particularly by assignment No. 6, he objects to the charge that if the plaintiff had notice of the defendant's intention to make a left turn at the intersection "and if he was given that notice at such distance from the intersection that he could, in the exercise of ordinary care, control his vehicle accordingly," the failure to give the hand signal would not be a proximate cause of the injuries. Under the facts in the case, the charge is free from error. The purpose of a hand signal is to give notice. If a complaining motorist has due notice otherwise, the purpose of the hand signal has been served. In this case the plaintiff testified: "The Camp car was in the second lane going towards Charlotte, getting ready to make a left turn." Of a similar situation, where notice was given by circumstances but not by hand signal, Justice Ervin, in the case of Cozart v. Hudson, 239 N.C. 279, 78 S.E.2d 881, 884, had this to say: "* * * this being so, the evidence warrants the inference there was no causal connection whatever between the failure of the plaintiff to give a hand signal and the subsequent collision. The omission to perform a duty cannot constitute one of the proximate causes of an accident unless the doing of the omitted duty would have prevented the accident." Queen City Coach Co. v. Fultz, 246 N.C. 523, 98 S.E.2d 860; Barker v. Gilbert Engineering Co., 243 N.C. 103, 89 S.E.2d 804; Jernigan v. Jernigan, 236 N.C. 430, 72 S.E.2d 912. The charge as to the respective duties of motorists at intersections was in accord with, and much of it actually quoted from, the following cases: Queen City Coach Co. v. Fultz, supra; Mallette v. Ideal Laundry and Dry Cleaners, 245 N.C. 652, 97 S.E.2d 245; Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; White v. Lacey, 245 N.C. 364, 96 S.E.2d 1; Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683; Harrison v. Kapp, 241 N.C. 408, 85 S.E.2d 337; Hamilton v. Henry, 239 N.C. 664, 80 S.E.2d 485; Finch v. Ward, 238 N.C. 290, 77 S.E.2d 661; Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115.

Finally, by assignment No. 9, the plaintiff alleges error in the definition of proximate cause and reasonable foreseeability as a constituent element thereof. On this subject the court charged in accordance with the rules as approved in Adams v. State Board of Education, 248 N.C. 506, 103 S.E.2d 854; White v. Lacey, supra; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; and Cooley v. Baker, supra. The charge on the issue of contributory negligence was free from error.

The jury found the accident resulted from the negligence of both parties. Neither is responsible to the other for the resulting damage. Both having been found at fault, the law leaves them where they left themselves.

No error.