Johnson v. Bell , 234 N.C. 522 ( 1951 )

67 S.E.2d 658 (1951) 234 N.C. 522

JOHNSON
v.
BELL.

No. 449.

Supreme Court of North Carolina.

November 21, 1951.

Broughton, Teague & Johnson, Raleigh, for plaintiff-appellee.

Clem B. Holding, Raleigh, for defendant-appellant.

WINBORNE, Justice.

Did the trial court err in overruling motions of defendant, aptly made, for judgment as in case of nonsuit? In the light of the provisions of G.S. § 20-158 applied to the allegations of the complaint, and the evidence offered by plaintiff which tends to show that Clark Avenue is a through or dominant street, and Woodburn Road is subservient thereto, it would seem that the case was one for the jury. See Anderson v. Talman Office Supplies, 234 N.C. 142, 66 S.E.2d 677.

The statute, G.S. § 20-158, prescribes that (a) The State Highway and Public Works Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are 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, and that wherever any such signs have been so erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. And the same section of the statute declares that "No failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence". See Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Lee v. Robertson Chemical Corp., 229 N.C. 447, 50 S.E.2d 181.

In Sebastian v. Horton Motor Lines, supra, regarding the statute, it is held "as a necessary corollary or as the rationale of the statute, that where the party charged is a defendant in any such action, the failure so to stop is not to be considered negligence per se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence". In like manner and for the same reason, the principle may be extended to anyone who violates the statute. See Reeves v. Staley, supra; [213 N.C. 770, 197 S.E. 541.] Hill v. Lopez, supra.

Applying these principles to the evidence in the case in hand, if Clark Avenue be a through street, and Woodburn Road a subservient street, with stop sign at its entrance into the intersection with Clark Avenue, it would have been unlawful for defendant to fail to stop, in obedience to the stop sign, before attempting to enter such intersection, and her failure so to do is evidence of negligence to be considered with other facts in the case in determining whether she was guilty of negligence. When so considered, the evidence shown on the record is of such character as to make a case for the jury.

True, there is no allegation that the stop sign was erected by the local officials, yet the allegations of the complaint are sufficient to admit of such inference, and the evidence tends to support the allegation. See Anderson v. Talman Office Supplies, 234 N.C. 142, 66 S.E.2d 677.

Moreover, there is allegation, and evidence tending to show that plaintiff knew that Clark Avenue on which he was traveling was a through highway, and that there was a stop sign on Woodburn Road. If such be the case, plaintiff was under no duty to anticipate that defendant, in approaching the intersection—his automobile being in plain view—would fail to stop as required by the statute, and in the absence of anything which gave or should give notice to the contrary, he was entitled to assume and to act on the assumption, even to the last moment, that defendant would not only exercise ordinary care for her own safety, but would act in obedience to the statute, and stop before entering the dominant street. The evidence points to the emergency caused by the failure of defendant to stop. Reeves v. Staley, supra.

Whether under such circumstances plaintiff acted as a reasonably prudent person would have acted under similar circumstances, is properly a jury question.

Hence in the judgment below we find

No Error.