Lemons Ex Rel. Lemons v. Vaughn ( 1961 )

120 S.E.2d 527 (1961) 255 N.C. 186

Roger E. LEMONS, by and through his Next Friend, Eugene Ruffin Lemons
v.
George E. VAUGHN.
George E. VAUGHN, Sr.,
v.
Eugene Ruffin LEMONS.

No. 670.

Supreme Court of North Carolina.

June 16, 1961.

Brown, Scurry, McMichael & Griffin, Reidsville, for George E. Vaughn, appellant.

Price & Osborne, Leaksville, Smith, Moore, Smith, Schell & Hunter, Greensboro, James M. Farris, Leaksville, for Roger E. Lemons and Eugene Ruffin Lemons, appellees.

HIGGINS, Justice.

The pleadings raise issues whether the accident and injury were caused by (1) the sole negligence of Vaughn, (2) the sole negligence of Roger E. Lemons, (3) the concurrent negligence of both. By dismissing Vaughn's claim and counterclaim the court held the evidence insufficient to go to the jury on (2). The effect of the court's ruling was that, in no event, could Vaughn recover. Of course, if the evidence was insufficient on (2) the ruling was correct. If sufficient, however, the error brought Lemons home free on (2) and half way home on (3).

Vaughn admitted making a left turn when the movement, as disclosed by events, was unsafe. The accident resulted. Was it the fault of Vaughn, or of Roger E. Lemons, or both? The time was 6:15 p. m. on March 11. In the twilight Vaughn saw meeting him a vehicle without lights. At the time he began his left turn across the west lane (width 12 feet), the approaching vehicle was 250 feet away. In the absence of notice to the contrary, he had the right to assume and to act on the assumption the driver would obey the speed laws, keep a proper lookout, and have his vehicle under proper control. Under the circumstances was Vaughn justified in attempting the crossover? If not he was negligent. If, under the circumstances the cause of the accident was not his but was due to the failure of Lemons to obey the speed laws, keep the lookout, and control his vehicle, then Lemons was negligent. Each driver had the right to assume the other would adhere to the safety laws. This assumption continued until a driver had notice to the contrary. As was said by Justice Ervin in Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115, 117: "Its manifest object is to promote and not to obstruct vehicular travel. In the very nature of things, drivers of motor vehicles act on external appearances. * * The statutory provision `that the driver of any vehicle upon the highway before * * turning from a direct line shall first see that such movement can be made in safety' does not mean that a motorist may not make a left turn on a highway unless the circumstances render such turning absolutely free from danger. It is simply designed to impose upon the driver of a motor vehicle, who is about to make a left turn * * * the legal duty to exercise reasonable care under the circumstances in ascertaining that such movement can be made in safety to himself and others before he actually undertakes it." (Citing authorities.)

The evidence permits the inference that Roger E. Lemons was driving at a high rate of speed. He and two other boys were "headed for town." He admitted three convictions of speeding—two for driving 65 miles in a 55-mile zone, and one for driving 45 miles in a 35-mile zone. His admission to the officer that he didn't think he was driving over 60, in connection with the physical evidence—90-foot skidmarks before the impact which knocked Vaughn's vehicle 40 feet down the road, permitted an inference of unlawful speed. We are considering permissible inferences only. What the evidence actually proves is for the jury.

Because of the distance separating the two vehicles when Vaughn began his intended left turn—250 feet—this case falls into a middle ground somewhere between Cooley v. Baker, supra, and Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331. In the Cooley case, the court held as a matter of law that Baker was free of negligent responsibility for the collision because of the distance—300 yards—separating the vehicles at the time he attempted to make the left turn. On the other hand, in the Aldridge case Burns was held negligent as a matter of law because he attempted to make a left turn when Hasty was only 20 to 25 feet away.

In this case it cannot be held as a matter of law that either driver was or was not guilty of negligence. This case presents issues of fact for jury determination. The judgments dismissing Vaughn's claim and counterclaim are reversed. The judgments in favor of Roger E. Lemons and Eugene Ruffin Lemons are set aside. A new trial is ordered on all issues raised by the pleadings.

Reversed in part. New trial in part.