Wright v. Pegram , 244 N.C. 45 ( 1956 )

92 S.E.2d 416 (1956) 244 N.C. 45

Bobby James WRIGHT
v.
Bernard G. PEGRAM and Taylor James Pegram.

No. 524.

Supreme Court of North Carolina.

May 2, 1956.

Ottway Burton, Asheboro, for plaintiff, appellant.

Coltrane & Gavin, by T. Worth Coltrane, Asheboro, for defendants, appellees.

HIGGINS, Justice.

The evidence of the defendant's speed of 35-40 miles per hour in a 20-mile zone and his entrance into the intersection against a red light was sufficient to go to the jury on the question of defendant's negligence. The judgment of nonsuit, therefore, can be upheld only if the plaintiff's contributory negligence appears as a matter of law. In order to warrant a nonsuit on that ground the plaintiff's evidence must establish his contributory negligence so clearly that no other conclusion may be reasonably drawn from that evidence. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Hinshaw v. Pepper, 210 N.C. 573, 187 S.E. 786.

Fractions of a second and a few feet of space may determine the difference between safety and danger in crossing intersecting streets and highways. At 20 miles per hour a motor vehicle will travel approximately 29 feet in one second. While the evidence warrants the inference the light turned green for the plaintiff at the time he arrived at the white line (for guidance of pedestrians) on North Fayetteville Street, yet the distance of that line from Salisbury Street is left to conjecture. Likewise, the evidence warrants the inference the light turned red for the defendant Bernard Pegram at the time he arrived at the white line on Salisbury Street, yet the distance of that line from North Fayetteville Street is likewise left to conjecture. There was no evidence offered as to the width of the streets.

On account of a little hill the plaintiff could see only about 100 feet west in the direction from which the defendant's car approached. The plaintiff had a right to assume and to act on the assumption that a motorist from that direction would obey the speed limit of 20 miles per hour, and upon that basis determine whether he had time to clear the intersection. He testified he looked both to the left and to the right as he entered the intersection and that he saw no approaching traffic. He did see three cars north of the intersection. The evidence indicates the defendant Bernard Pegram approached and drove into the intersection at a speed of 35-40 miles per hour, practically double the legal speed limit. By reason of the defendant's speed, the plaintiff actually had only about one-half the time to clear the intersection he had a right to expect. Of course, it was the plaintiff's duty to look and to see what he should have seen. But it was his duty to look not only to the left and to the right, but also in front. Naturally he could take a last look in only one direction. The defendant's speed carried his car the 100 feet from the point of first possible visibility to the intersection in less than two seconds. The plaintiff did not see the Ford until the collision. The evidence disclosed that two of the cars in front of the plaintiff were in movement. This fact may have occupied his sole attention. Whether under all the circumstances he should have seen the defendant's approach, and in the exercise of due care could and should have avoided the accident, presents a question of fact for the jury and not one of law for the court.

Both parties in their briefs cite the case of Troxler v. Central Motor Lines, 240 N.C. 420, 82 S.E.2d 342, 346. That case turned on the question whether the allegations of the complaint absolved Mrs. Lefler from liability by alleging facts sufficient to show upon the face of the complaint that negligence of her co-defendants was the sole proximate cause of the collision and resulting damage; and whether her negligence, if any, was insulated and not a proximate cause of that collision. In discussing the question, Justice Winborne said: "On the other hand, Lefler, having the green light as she approached the intersection, it seems clear that she had the right to proceed. It is alleged she did proceed into the intersection. But if it be inferred from the allegation that she entered the intersection as the light was in the process of changing, she was not under any duty of anticipating negligence on the part of Wyrick, but in the absence of anything which gave or should give notice to the contrary, she was entitled to assume, and to act on the assumption, that he, Wyrick, in the exercise of ordinary care, would not proceed into the intersection until after he had the green light, and she had cleared the intersection." Citing Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.

Mrs. Lefler's situation in the Troxler case is not unlike the plaintiff's in the case at bar. Mrs. Lefler, according to the allegations in the complaint, and the plaintiff, according to the evidence in this case, entered the intersection when the light was red for the other party. We are not unmindful of the fact that a motorist facing a green light as he approaches and enters an intersection is under the continuing obligation to maintain a proper lookout, to keep his vehicle under reasonable control, and to operate it at such speed and in such manner as not to endanger or be likely to endanger others upon the highway. Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354. Nevertheless, in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E. 2d 25.

We conclude the case at bar falls within that category in which the issue of contributory negligence is for the jury and does not appear as a matter of law. Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514; Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683; Hamilton v. Henry, 239 N.C. 664, 80 S.E.2d 485; Gibson v. Whitton, 239 N.C. 11, 79 S.E.2d 196; Mikeal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756; Ward v. Cruse, 236 N.C. 400, 72 S.E.2d 835, 38 A.L.R.2d 109; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Fowler v. Atlantic Co., 234 N.C. 542, 67 S.E.2d 496; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658; Batchelor v. Black, 232 N.C. 745, 61 S.E.2d 894; Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; McMillan v. Butler, 218 N.C. 582, 11 S.E.2d 877; Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87.

The judgment of the Superior Court of Randolph County is

Reversed.