Hyder v. ASHEVILLE STORAGE BATTERY COMPANY , 242 N.C. 553 ( 1955 )

89 S.E.2d 124 (1955) 242 N.C. 553

John A. HYDER
v.
ASHEVILLE STORAGE BATTERY COMPANY, Inc.

No. 21.

Supreme Court of North Carolina.

September 21, 1955.

Arthur J. Redden, L. B. Prince, Hendersonville, for plaintiff appellee.

Meekins, Packer & Roberts, Asheville, for defendant appellant.

DEVIN, Justice.

It is not controverted that there was evidence of negligence on the part of the driver of defendant's truck, but the appellant contends the comments of the trial judge, spoken in the presence and hearing of the jury, with respect to the sufficiency of the evidence to warrant submission of an issue as to plaintiff's contributory negligence, constituted an expression of opinion as to the evidence, prohibited by G.S. § 1-180.

The plaintiff takes the position, however, that there was no evidence of contributory negligence on his part sufficient to be submitted to the jury, and hence the judge's comments even if they be considered improper (which is not conceded) were in no wise prejudicial to the defendant.

Was there evidence of any negligence on the part of the plaintiff proximately contributing to the injury complained of?

For the determination of this question, under the rule, the evidence must be considered in the light most favorable for the defendant.

There was evidence tending to show that on the occasion alleged the plaintiff driving his automobile north on Lexington Avenue approached the intersection with College Street, a three-lane thoroughfare, over which the city maintained electrically controlled traffic signals, and in obedience to the warning of a red light stopped before entering the intersection. As soon as the green light appeared plaintiff moved forward, and the front of his automobile had reached the center lane of College Street when it was struck by defendant's truck coming from his right being driven at a speed variously estimated at from twentyfive to fifty miles per hour.

The defendant's evidence tended to show that at the time the defendant's truck approached the intersection the light on College Street was green. As College Street was a one-way much travelled street, the duty would be imposed upon the motorist approaching the intersection from the south on Lexington Avenue to anticipate that vehicles would be approaching the intersection from his right. From the defendant's evidence and such of plaintiff's evidence as was favorable to the defendant the inference is permissible that the plaintiff failed to look to his right or to pay heed to the traffic before moving into the intersection, when by looking he could have seen the approaching truck in time to avoid collision. The front of plaintiff's automobile had reached the center lane of College Street when it was struck by the oncoming truck. It would seem from plaintiff's testimony that he moved into the intersection without paying any attention to traffic and did not see defendant's truck until he heard his wife's exclamation. Significant also is the evidence from city employees that the signal light facing the street on which plaintiff was moving was found to be out of order so that at times when the red light was on, the green light would also appear several seconds before the full interval for changing lights, resulting in both red and green lights appearing on the side facing plaintiff.

Unquestionably it is the duty of the driver of an automobile approaching a street intersection, when faced with a municipally maintained traffic signal showing red, to stop before entering. It is also true that if faced with a green light the driver is warranted in moving into the intersection, unless the circumstances are such as to indicate caution to one of reasonable prudence. Notwithstanding the driver is faced with green light, however, the duty rests upon him to maintain a reasonable and proper lookout for other vehicles in or approaching the intersection. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25; Seiner v. Toye Bros. Yellow Cab Co., La. App., 18 So. 2d 189.

"Automobile driver may not, ordinarily, assume that intersection is clear, simply because of appearance of green traffic signal light."Duke v. Gaines, 224 Ala. 519, 140 So. 600.

The duty of a driver at a street intersection to maintain a lookout and to exercise reasonable care under the circumstances is not relieved by the presence of electrically controlled traffic signals, which are intended to facilitate traffic and to render crossing less dangerous. He cannot go forward blindly even in reliance on traffic signals. 4 Blashfield, p. 244. The rule is well stated in 60 C.J.S., Motor Vehicles, § 360b, pp. 854, 855 as follows:

"A green traffic light permits travel to proceed, and one who has a favorable light is relieved of some of the care which otherwise is placed on drivers at intersections, since the danger under such circumstances is less than if there were no signals. However, a green or ``go' light or signal is not an absolute guarantee of a right to cross the intersection solely in reliance thereon, without the necessity of making any observations and without any regard to traffic conditions at, or to other persons or vehicles within, the intersection. A green or ``go' signal is not a command to go, but a qualified permission to proceed lawfully and carefully in the direction indicated. In other words, notwithstanding a favorable light, the fundamental obligation of using due and reasonable care applies."

"The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control * * *." Cox v. Hennis Freight Lines, supra [236 N.C. 72, 72 S.E.2d 29].

The driver of an automobile is under no duty to anticipate negligence on the part of others in the absence of anything which should give notice to the contrary, and the law does not impose on a driver facing a green light the duty to anticipate that one approaching along the intersecting street facing a red light will fail to stop. But this does not absolve him from keeping a reasonable lookout for vehicles in or approaching the intersection at excessive speed. The rule of ordinary prudence prevails. He must anticipate and expect the presence of others.

After giving due consideration to the evidence set out in the record, and without discussing it further, we reach the conclusion that the defendant was entitled to have the issue of contributory negligence submitted to the jury without unfavorable comment from the court as to the sufficiency of the evidence to support it.

The defendant's motion for judgment of nonsuit on the ground that contributory negligence affirmatively appeared from plaintiff's evidence was properly overruled. The question was one for the jury. Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.

The provisions of G.S. § 1-180 prohibiting expressions of opinion by the trial judge as to the sufficiency of the evidence are not confined to formal instructions to the jury but include the expression of any opinion at any time during the trial which is calculated to prejudice either party. State v. Oakley, 210 N.C. 206, 186 S.E. 244; Bailey v. Hayman, 220 N.C. 402, 17 S.E.2d 520; Starling v. Selma Cotton Mills, 171 N.C. 222, 88 S.E. 242; Withers v. Lane, 144 N.C. 184, 56 S.E. 855.

While the able and experienced trial judge was doubtless inadvertent to the fact at the time that the members of the jury were listening to and probably influenced by his remarks, nevertheless we think they were prejudicial, and that the defendant is entitled to a

New trial.

WINBORNE and HIGGINS, JJ., took no part in the consideration and decision of this case.