Blackwell v. Butts , 10 N.C. App. 347 ( 1971 )

CAMPBELL, Judge.

A jury trial having been waived, the findings of fact by the trial court are conclusive if supported by any competent evidence and a judgment supported by such findings will be affirmed. Piping, Inc. v. Indemnity Co., 9 N.C. App. 561, 176 S.E. 2d 835 (1970).

“Generally, in tort actions involving issues of negligence . . . the law casts upon the plaintiff the burden of showing the defendant’s negligence. ...” Jernigan v. R. R. Co., 275 N.C. 277, 167 S.E. 2d 269 (1969).

The record shows that the collision occurred in a 55 mile per hour zone.

The driver of plaintiff’s automobile testified:

“ ... I left my mother’s and I came out to the highway and I stopped as I got to the edge of the highway. I looked to my left and then to my right and did not see anything coming, so I went out in the highway, and I guess I had gone about 50 feet, I reckon, and I was hit from the back. . . . When the accident occurred, I had just shifted to second. I was just pulling out and I had shifted to second. I was going about 15 to 20 miles per hour and I had gotten on my side of the road, the right side.

... I did not see the defendant’s motor vehicle before the accident, nor did I hear anything before the accident. I did not hear a horn blow, nor did I hear tires squeal, I was on my right side of the highway and I was fully in my lane of traffic. . . . The left rear of my automobile was struck by the defendant’s car and the right front of the Butts’ automobile was damaged. When I pulled up to the edge of Highway 150, and looking to the east, I guess I could see about 200 feet and it was pretty clear looking to the west. The roadway looking to the east from where I was stopped in the driveway at the edge of the highway there is a curve. I guess the curve is about 200 feet from the driveway, but I am not sure.

Q. Can you see much behind the curve?

A. Not unless you get into the highway; not much further, I don’t think.

I stopped in the driveway before I pulled onto the highway. I looked both ways; I looked to my left, then to my right, and then I proceeded out into the highway. I had shifted to second as I have said when I was struck from behind. I never did see the Butts’ vehicle before the accident. . . .

. . . The road was clear and dry and I had planned to go in a westerly direction. I pulled up to the road and stopped, and I looked first to my left and did not see anything coming. There was nothing to obstruct my view to my left. I looked to my right and to the best of my knowledge there was approximately 200 feet to my right that I could see unobstructedly. I looked to my right approximately 200 feet and did not see anything at all. I then pulled out into the road. I usually pull into the road at an angle, but I do not remember exactly what I did on this particular day. I had a three-year-old boy in the front seat with me. I believe he was sitting. When I pulled up to the highway and saw nothing to the right, I did not look back to my left. I last looked to my right. When I looked to my right, I just pulled on out because there was nothing coming and there was a clear view to my left. I last looked to my right just before I pulled out. . . . The front bumper of my automobile was at the edge of the paved portion of the road when I stopped before entering the highway. I then pulled out after I had looked to my right because I saw nothing.

Q. Then, you were not looking back to your right after you started out, were you?

A. No.”

There was no other witness for the plaintiff. The defendant testified:

“I was traveling between 50 and 55 miles per hour in a westerly direction on Highway 150. As I traveled westerly and before the accident, I did see an automobile at the end of the driveway. . . . The plaintiff’s car was stopped there. The bumper of the car was about even with the pavement. I was traveling on my right side of the road, that is the north side of the road. It was about 300 feet from my automobile to the plaintiff’s automobile when I first saw her stopped on the side of the highway. When I first saw her, I did not reduce the speed of my vehicle at that time, but about the time I saw her, she started to pull out and I blew my horn and applied my brakes. I put my foot on the brakes to break the speed but not enough to slide.

After I blew my horn, the car kept coming out in the highway. I kept on blowing my horn and I was pretty close to her and I saw this little boy sitting there in the right front seat and I swerved to the left trying to miss her. When I swerved to the left, the right front of my automobile struck her left rear. My car slid a little ways after the collision and stopped and I got out. Her car went over in the man’s yard and turned over. . . .

... I was really close to the Blackwell car when I first saw the child. I was about 300 feet from the Blackwell car when I first saw it. When I first saw it it was stopped, and I went on, and she pulled out. When I first saw it, she was stopped, and she pulled out and then I blew the horn. . . .

After my car hit the Blackwell car, it stopped up the road a little ways, but I don’t know how many feet; I don’t believe it was quite 50 feet. I will make a mark on the blackboard where I was when I blew my horn; it was right along here when I saw her, and I reckon right here when she started out. I blew my horn and I put my brakes on here when I saw that she was coming on out. I do not know how fast my car was traveling when I hit the Blackwell car, I was trying to get away from that little boy. There was not any traffic coming from the other direction. My car was not completely in the west lane of traffic. She was in the middle of the road in an angle. I will make a mark showing what type of an angle that she came into the road. It was like that, and I came in here like that. This is my car and this is her car. She was coming out of the driveway and I was coming up here like that.”

The driver of the plaintiff’s automobile, before entering the public highway from a private driveway, had the duty to yield the right of way to all vehicles approaching on the public highway. G.S. 20-156(a). The fact that the driver of plaintiff’s automobile emerging from the private driveway stopped before entering the highway, did not relieve her from further responsibility with respect to the exercise of due care. 60A C.J.S., Motor Vehicles, § 345. She knew that she could not see to her right, that is, to the east more than 200 feet because of the sharp curve to her right. Due care imposed the further duty to proceed with great caution out into the highway before leaving a position of safety. It was also incumbent upon her to look again to her right when she would then have a greater view around the curve before she entered the traffic lane for westbound traffic. It was westbound traffic which would be coming around the curve. It is obvious from her testimony quoted above that she could have seen around the curve further if she had gotten out into the eastbound traffic lane. The eastbound lane was unobstructed both as to vehicles and view.

If she had then looked, she would have seen the defendant’s vehicle in time to let it pass. Instead, she never looked again to the right but proceeded going to the left at an angle and into the westbound traffic lane. The mere fact that the plaintiff’s driver got into the westbound lane a split second or two before being struck by the defendant’s vehicle did not give her the right of way. Moore v. Butter, 10 N.C. App. 120, 178 S.E. 2d 35 (1970).

The factual situation in this case is quite similar to the facts in Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111 (1953), except that in this case the driver of the plaintiff’s vehicle succeeded in getting into the highway a little bit further than in the Garner case, and instead of being struck in the side, was struck on the left rear corner by the defendant as he was maneuvering to avoid the sudden entrance of the plaintiff’s vehicle into the highway immediately in front of him. The defendant had the right of way until it was occluded by the negligent movement of the driver of the plaintiff’s automobile. Warren v. Lewis, 273 N.C. 457, 160 S.E. 2d 305 (1968).

The fact that the driver of plaintiff’s automobile succeeded in getting across the highway and into the westbound traffic lane a split second before being struck by defendant’s vehicle does not make applicable the rules with regard to following too closely and rear-end collisions. These rules only apply where one vehicle has been in front of another vehicle for a sufficient length of time to enable the following driver, in the exercise of due care, to be conscious of the vehicle in front, which was not the situation here involved. 60A C.J.S., Motor Vehicles § 323.

The evidence in this case does not support the finding of the trial judge “[t]hat the sole proximate cause of the collision complained of and the damages to the plaintiff’s automobile was the negligence of the defendant in failing to keep a proper lookout and in failing to keep his Chevrolet automobile under proper control.” Under the evidence taken in the light most favorable to the plaintiff, the plaintiff failed to establish his right to a recovery.

The judgment of the Superior Court appealed from is

Reversed.

Judge Hedrick concurs. Judge Britt dissents.