Wilson v. Kennedy , 248 N.C. 74 ( 1958 )

102 S.E.2d 459 (1958) 248 N.C. 74

D. E. WILSON
v.
Joseph Brown KENNEDY.
Mrs. D. E. WILSON
Joseph Brown KENNEDY and D. E. Wilson, Additional Defendant.

No. 174.

Supreme Court of North Carolina.

March 26, 1958.

Ernest R. Warren, Gastonia, and Helms, Mulliss, McMillan & Johnston, Charlotte, for D. E. Wilson, appellee.

Carpenter & Webb, Charlotte, for defendant Joseph Brown Kennedy, appellant.

RODMAN, Justice.

Defendant's exceptions do not present any question which involves the right of the plaintiff Mrs. Wilson to compensation in accord with the verdict in her case. His exceptions present only the asserted negligence of D. E. Wilson, operator of the Ford, (a) as a basis for contribution for payment of the judgment obtained by Mrs. Wilson, (b) as a bar to recovery by Wilson, the operator, of his claim for damages, and (c) as the basis for liability by Wilson to defendant for damages to Kennedy's car as asserted in the counterclaim.

When the court allowed the motion of the additional defendant, Wilson, to nonsuit Kennedy's claim for contribution to compensate Mrs. Wilson for the injuries she sustained in the collision, it determined and adjudged that Wilson, the operator of the Ford, did not negligently contribute to the collision and the injuries sustained by Mrs. Wilson. If Wilson was not negligent in producing or contributing to the collision, there could, of course, be no negligence which would defeat Wilson's claim for damages; if, however, Wilson is chargeable with negligence proximately contributing to the collision, it bars Wilson's right to recover from Kennedy and entitles Kennedy to contribution for payment to Mrs. Wilson.

On Kennedy's claim for contribution he was, as to Wilson, a plaintiff, Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773, and as such is entitled to have the evidence in support of his claim viewed in the light accorded plaintiffs in passing on motions to nonsuit. If the evidence, when viewed in the light most favorable to him, supports his allegations, its weight and credibility was for the jury.

Since Linwood Avenue crosses Franklin Avenue at an oblique angle, the distance through the intersection is somewhat in excess of the width of Franklin Avenue. There is evidence that the right front of the Ford and the left front of the Nash were damaged in the collision. This fact and the other testimony as to the location of the vehicles at the moment of impact would tend to indicate that the Ford had traveled perhaps as much as 50 or 55 feet across the intersection at the moment of impact. At a speed of 15 m.p.h., as fixed by the operator of the Ford, it was traveling 22 feet per second; at a speed of 25 m. p. h., a permissible inference from other testimony, it was traveling approximately 37 feet per second. At either speed he could traverse the intersection in less than four seconds.

Kennedy testified that he saw the light on his street turn green before he reached the intersection, and that he proceeded into the intersection on a green light. To his left, traveling in an easterly direction was the Zachary station wagon and the truck. They had reached the intersection ahead of him and had stopped at the crosswalk for a red light; but there is evidence to the effect that they had started to move eastwardly before Kennedy reached the intersection. Zachary, operator of the Chevrolet station wagon occupying the center lane for eastbound traffic, testified: "When the Nash entered into the intersection, the traffic signal was green. It had been green for some period of time prior to the Nash entering the intersection. It had been green at least four seconds, and possibly as much as six or seven seconds." Mrs. Zachary, an occupant of the station wagon, testified: "At the moment of the collision the traffic light was green for traffic traveling east on Highway No. 29. It had been green approximately five seconds. After the collision, the two automobiles scooted over to the corner of the intersection together, the southeast corner."

The evidence is uncontradicted to the effect that when the traffic light shows green on either Franklin or Linwood, it would show red on the other. Nor is it contradicted that when the green is followed by amber, it would continue to show red on the other avenue.

On the testimony the jury might find that Kennedy had a green light for four or five seconds before the collision. At a speed of 15 m. p. h. Wilson would have traveled in four seconds more than 85 feet after the light showed red on Linwood Avenue and 150 feet or more after the amber light first showed on Linwood Avenue. Since Wilson had only traveled 50 or 55 feet or thereabouts in the intersection when the collision occurred, the jury could find that the red light came on before Wilson reached the intersection and that the amber light came on when he was 100 feet or more north of the intersection.

True this evidence is sharply in conflict with Wilson's evidence that he entered the intersection on a green light. But if the evidence offered is sufficient to show negligence on the part of Wilson, Kennedy is entitled to have a jury ascertain the facts. There is other evidence which a jury might find sufficient to establish Wilson's negligence.

Since the jury can find from the evidence that Wilson entered the intersection when confronted with either a red or amber light, would that fact permit a jury to find that Wilson was negligent? This case is unlike Currin v. Williams, N.C., 102 S.E.2d 455, and Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. In this case no statute gives interpretation or legal effect to the traffic lights. G.S. § 20-158(c) is confined to red and green lights at intersections outside of municipal corporate limits. It makes no reference to amber lights and can have no effect here since this intersection is within the corporate limits of Gastonia. What the ordinances of Gastonia provide is speculative. The evidence does not disclose. We cannot take judicial notice of municipal ordinances. State v. Clyburn, 247 N.C. 455, 101 S.E.2d 295.

Unaided by statute or ordinance, the meaning and force to be given to the traffic light at this intersection is that meaning which a reasonably prudent operator of an automobile should and would understand and apply. Queen City Coach Co. v. Fultz, 246 N.C. 523, 98 S.E.2d 860. Traffic signals of the kind here described are in such general use that it is, we think, well known by motor vehicle operators that a red traffic light is a warning that the highway is closed in order to permit those using the intersecting highway safe passage through the intersection. Hence, prudence dictates that he should stop. The meaning of the amber light is likewise recognized. It cautions but not in the positive tones of the red light. It warns that red is about to appear, and that it is hazardous to enter. It affords those who have entered on the green light the opportunity to proceed through the intersection before the crossing traffic is invited to enter. Jackson v. Camp & Brown Produce Co., 92 Ga.App. 359, 88 S.E.2d 540; Blashfield Automobile Law, sec. 1040, perm. ed. The green light indicates that the motorist may proceed. It does not guarantee safe passage through the intersection. The driver accepting the invitation must continue to exercise the care of a reasonably prudent person under similar conditions.

With these meanings which the jury could apply to the traffic lights and the evidence on which a jury could find that the Ford entered the intersection when warned not to do so by a red light or when cautioned not to do so by an amber light, it was for the jury to determine whether Wilson's conduct was negligent and a proximate cause of the collision and resulting injuries. Wright v. Pegram, 244 N.C. 45, 92 S.E.2d 416; Hyder v. Asheville Storage Battery Co., Inc., 242 N.C. 553, 89 S.E.2d 124; Cox v. Hennis Freight Lines, supra.

If the jury determines that Wilson's negligence proximately contributed to the collision and injuries, that negligence would (1) entitle Kennedy to contribution for the payment of the judgment which Mrs. Wilson has obtained, and (2) defeat any claim which Wilson might have for injuries to his vehicle. If the jury answers the issue of Wilson's negligence in the negative, he is entitled to have the jury fix the amount of his damages.

Since the jury has ascertained, in an action in which Mrs. Wilson, the defendant Kennedy, and Wilson, the operator of the Ford, are all parties, that Kennedy negligently operated his motor vehicle, which was at least one of the causes of the collision, it necessarily follows that Kennedy is not entitled to recover of Wilson on Kennedy's counterclaim.

The judgment fixing defendant's liability to Mrs. Wilson as ascertained by the jury is affirmed. The judgment dismissing defendant's claim for contribution is reversed. The judgment imposing liability on defendant Kennedy for damages to plaintiff D. E. Wilson is erroneous.

As to plaintiff Mrs. D. E. Wilson—affirmed.

As to additional defendant D. E. Wilson—reversed.

As to plaintiff D. E. Wilson—new trial.