Branch v. Gurley , 267 N.C. 44 ( 1966 )

147 S.E.2d 587 (1966) 267 N.C. 44

Arthur BRANCH
v.
Lester GURLEY and Leonard Outlaw.

No. 363.

Supreme Court of North Carolina.

April 13, 1966.

Beech & Pollock, by H. E. Beech, Kinston, for plaintiff appellee.

Whitaker, Jeffress & Morris, by A. H. Jeffress, Kinston, for defendant Lester Gurley, appellant.

Wallace, Langley & Barwick, by F. E. Wallace, Jr., Kinston, for defendant Leonard Outlaw, appellant.

HIGGINS, Justice.

The judgment here for review is based on the jury's answers (1) to the issue of negligence returned at the trial before Judge Hubbard, and (2) to the issue of damages returned at the trial before Judge Clark. Judge Hubbard, having set aside the verdict on the issue of damages only, as he had the right to do in his discretion, Hinton v. Cline, 238 N.C. 136, 76 S.E.2d 162, the defendants are entitled to have us consider their assignments of error based on the exceptions to his rulings on the issues of negligence, and to Judge Clark's rulings on the issue of damages.

The evidence in the light most favorable to the plaintiff is sufficient to support a finding that the defendant Gurley, driving east on Hill Street, failed to stop as required, but overran the stop sign, crashed into the side of the Outlaw vehicle in the southwest quadrant of the intersection, seriously injuring the plaintiff; and that in so operating his automobile he was guilty of actionable negligence. Judge Hubbard properly overruled the defendant Gurley's motion for nonsuit. Rouse v. Jones, 254 N.C. 575, 119 S.E.2d 628; King v. Powell, 252 N.C. 506, 114 S.E.2d 265; Lake v. Harris Express Co., 249 N.C. 410, 106 S.E.2d 518. The defendant Gurley's objections to the rulings on the issues of negligence are not sustained. The objection to the charge on that issue likewise is not sustained.

The allegations of negligence against the defendant Outlaw are: (1) he was driving too fast on the wet street; (2) he failed to observe the approach of Gurley's vehicle and take proper steps to prevent the collision. The parties stipulated that the speed limit for traffic on Memorial Drive at the time was 35 miles per hour. The plaintiff's evidence with respect to Outlaw's speed at the time he entered the intersection was 20 to 30 miles per hour. As Outlaw approached the intersection from the north, two or three cars were approaching from the south. Motorists approaching the intersection from either direction on Hill Street were confronted with a stop sign. Of this the defendant Outlaw had knowledge. There might be danger that one or more of the motorists approaching from the south on Memorial Drive would signal for a turn on Hill. Hence Outlaw could not be expected to devote his close attention to traffic approaching on Hill, or to anticipate a motorist would violate the stop sign and enter the intersection. Outlaw had the right to assume and to act on the assumption that all motorists on Hill would obey the stop sign until he had, or should have had, notice to the contrary. According to the evidence, Outlaw was two-thirds of the way through the intersection before Gurley's vehicle crashed into his. Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393; Wright v. Pegram, 244 N.C. 45, 92 S.E.2d 416. We conclude the evidence was insufficient to support a finding that Outlaw was guilty of actionable negligence. Judge Hubbard should have sustained his motion for nonsuit and dismissed the action as to him.

The defendant Gurley strenuously contends Judge Clark committed error by permitting Drs. Spigner and Rasmussen to use X-ray photographs in illustrating their testimony with respect to the plaintiff's injuries, broken bones, etc. Dr. Spigner testified: "I made several X-rays of his hip and his wrist. They were made at my direction and under my supervision." Dr. Rasmussen testified: "These X-rays were made at my direction. They were made while I was with the patient in the emergency room and transferred to the X-ray department of the Duplin General Hospital * * *. These are X-rays of Arthur Branch."

We hold the X-ray photographs were properly authenticated for the use of the witnesses in illustrating their testimony. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. The case of Spivey v. Newman, 232 N.C. 281, 59 S.E.2d 844, cited by the appellants, is not in point. The Court in that case rejected the X-ray "(F)or it did not appear by competent evidence that such X-ray photograph was actually a picture of the plaintiff's skull."

As to the defendant Gurley, the record fails to disclose error, either by Judge Hubbard on the issue of negligence, or by Judge Clark on the issue of damages.

On Outlaw's appeal, the Judgment is Reversed.

On Gurley's appeal, No Error.

MOORE, J., not sitting.