Ward v. Cruse , 236 N.C. 400 ( 1952 )

72 S.E.2d 835 (1952) 236 N.C. 400

WARD
v.
CRUSE et al.

No. 381.

Supreme Court of North Carolina.

November 5, 1952.

Ottway Burton, Asheboro, for plaintiff appellant.

H. M. Robins, Asheboro, for defendant appellees.

BARNHILL, Justice.

The record on the former appeal, Ward v. Cruse, 234 N.C. 388, 67 S.E.2d 257, disclosed that plaintiff testified on the first trial that when he reached the intersection and after seeing his prospective passengers some distance up the Whitley road to his right, he swerved his vehicle back to his right to enter the north branch of the Whitley road. He did not so testify in the court below. While there was testimony that plaintiff gave a left-turn signal and drove his vehicle completely on the left, or south, side of the by-pass and then cut back sharply to his right to enter the north, or right-hand, branch of the Whitley road, this testimony came from witnesses for the defendant. And it is axiomatic that evidence offered by the defendant which is in conflict with or contradicts the testimony offered by the plaintiff is not to be weighed in the balance in the consideration of an exception to a judgment of involuntary nonsuit. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543.

Only so much of the defendants' evidence as is favorable to the plaintiff or tends to explain or make clear that which has been offered by the plaintiff may be considered in determining whether the evidence, considered in the light most favorable to the plaintiff, makes out a case for the jury. Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E.2d 740; Atkins v. White Transportation Co., supra; Rice v. City of Lumberton, supra.

G.S. § 20-149(a) requires the driver of a vehicle, in overtaking and passing another vehicle proceeding in the same direction, to pass at least two feet to the left thereof. In discussing this statute in Maddox v. Brown, 232 N.C. 542, 61 S.E.2d 613, 616, we said:

"* * * notwithstanding the provisions of this statute, a motorist may, in the exercise of ordinary care, pass another vehicle, going in the same direction, on the right of the overtaken vehicle when the driver of that vehicle has given a clear signal of his intention to make a left turn and has left sufficient space to the right to permit the overtaking vehicle to pass in safety."

While we adhere to this rule, it is not controlling here, as a matter of law, so as to warrant or require a judgment of nonsuit.

Considering the evidence in the light most favorable to the plaintiff, he discontinued his left-turn signal some 150 feet before he reached the intersection and was driving along the middle of the highway, straddling the center line. He had not completely cleared the right-hand lane of traffic. Instead, that lane was partly blocked by his taxi when the individual defendant approached from the rear and undertook to pass him on his right-hand side.

Furthermore, plaintiff's evidence tends to show that Cruse undertook to pass plaintiff without first giving audible warning of his intention so to do as required by G.S. § 20-149(b). The rule stated in the Maddox case was not intended to and does not relieve a motorist of the duty of observing other pertinent provisions of our statute regulating the operation of motor vehicles upon the public highways of the State.

Therefore, whether the facts and circumstances surrounding the collision, as they are found to be from the conflicting testimony offered, establishes actionable negligence on the part of Cruse is a question for the jury to decide under appropriated instructions by the court, applying the rule stated in the Maddox case and the provisions of the pertinent statutory traffic regulations. Conley v. Pearce-Young-Angel Co., supra.

The plaintiff's evidence is not such as to warrant the conclusion, as a matter of law, that his conduct was a contributing cause of the collision and the resulting damage to his taxi. This too is a question for the jury. Conley v. Pearce-Young-Angel Co., supra; Atkins v. White Transportation Co., supra; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496; McIntyre v. Monarch Elevator & Machine Co., 230 N.C. 539, 54 S.E.2d 45.

In preparation for his appeal from the judgment entered at the first trial, plaintiff paid the official court reporter $104.46 for a transcript of the testimony offered at that trial. He moved in the court below that he have and recover of defendants said sum as a part of the costs recoverable by him under the provisions of G.S. §§ 6-33, 6-34. The motion was denied and plaintiff excepted.

G.S. § 6-34 provides that: "When an appeal is taken from the superior court to the supreme court, the clerk of the superior court, when he sends up the transcript, shall send therewith an itemized statement of the costs of making up the transcript on appeal, and the costs thereof shall be taxed as a part of the costs of the supreme court."

Under this statute the cost of preparing the transcript of the record becomes a part of the costs incurred in this Court and is taxable as such. There has been no motion to retax the costs assessed by the clerk of this Court and the judge of the superior court was without jurisdiction to entertain the motion filed in the court below. Bailey v. Hayman, 222 N.C. 58, 22 S.E.2d 6; Ebert v. Disher, 216 N.C. 546, 5 S.E.2d 716.

"If in any court of appeal there is judgment for a new trial, or for a new jury * * * costs shall be in the discretion of the appellate court." G.S. § 6-33.

In this connection it is well to note that the decision in Dobson v. Southern R. R. Co., 133 N.C. 624, 45 S.E. 958, was rendered prior to the enactment of ch. 456, P.L.1905, which is now codified as G.S. § 6-34.

Even if we waive the questions of jurisdiction and procedure, we must conclude that plaintiff's exception is without merit. "The costs of making up the transcript on appeal", G.S. § 6-34, has reference to and includes only the cost of transcribing the judgment roll and case on appeal, as finally agreed or settled, which the clerk of the superior court is required to certify to this Court. G.S. § 1-284. The amount expended for a transcript of the testimony preliminary to preparing and serving appellant's proposed case on appeal constitutes no part of this cost. Hence the order entered denying the motion is affirmed.

For the reasons stated the judgment entered in the court below dismissing the action as in case of nonsuit is reversed.