Davis v. Jessup , 257 N.C. 215 ( 1962 )

125 S.E.2d 440 (1962) 257 N.C. 215

Marjorie C. DAVIS, Administratrix of the Estate of Jettie Lee Cromer Carroll, Deceased,
v.
Roxie N. JESSUP, Administratrix of the Estate of Rufus Cruise Samuel, Deceased.
C. O. CARROLL, Administrator of the Estate of William Lewis Carroll, Deceased,
v.
Roxie N. JESSUP, Administratrix of the Estate of Rufus Cruise Samuel, Deceased.

No. 388.

Supreme Court of North Carolina.

May 23, 1962.

White & Crumpler, Leslie G. Frye and Harrell Powell, Jr., Winston-Salem, for plaintiffs-appellants.

Jordan, Wright, Henson & Nichols, Greensboro, for defendant-appellee.

DENNY, Chief Justice.

The plaintiffs' first assignment of error is to the consolidation of these actions for trial. The trial court possesses the discretionary power in proper cases to order the consolidation of actions for trial. McIntosh, North Carolina Practice & Procedure, 2nd Ed., Vo1. I, Section 1342; Peeples v. Seaboard Air Line R. R. Co., 228 N.C. 590, 46 S.E.2d 649, and cited cases. Moreover, when the consolidation of actions for the purpose of trial is assigned as error, the appellant must show injury or prejudice arising therefrom. Here, both actions grew out of the same accident, and in essence the complaints are identical, and so are the answers. The same defenses are interposed, the plaintiffs used the same witnesses, and the evidence was the same except on the question of damages. Both actions were against the same defendant, and both plaintiffs were represented by the same attorneys. Furthermore, it has not been shown on this record that the appellants were injured or prejudiced by the order of consolidation. This assignment of error is overruled.

The plaintiffs assign as error the following portion of the court's charge: "And the court further instructs you that within the intersection, between the two 35 miles per hour signs, the posted speed limit would be 35 miles an hour." The evidence is to the effect that the signs referred to were erected by the State Highway Commission. The plaintiffs contend that only city officials are authorized to post speed limits within the city. It is further contended that all the evidence shows that the land adjacent to U. S. Highway 311 in the vicinity of the intersection was open and, therefore, the 55 miles per hour speed limit provided for in G.S. § 20-141 was applicable.

In the case of Yost v. Hall, 233 N.C. 463, 64 S.E.2d 554, it is stated: "Certain of our highways are built and maintained in part out of funds contributed by the Federal government. They form links in an interstate system and are designated as U. S. highways. They are, nonetheless, State highways under the supervision and control of the State Highway and Public Works Commission. G.S. § 20-158 is applicable to these just as it is to other State highways. The contention that Highway 52 was not a dominant or through highway for want of authority in the State Commission to so designate it is without validity."

G.S. § 20-141 (d) provides: "Whenever the State Highway Commission shall determine upon the basis of an engineering and traffic investigation that any speed hereinbefore set forth is greater than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, said Commission shall determine and declare a reasonable and safe speed limit thereat, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway."

The authority of the State Highway Commission above provided does not stop at city limits, but extends to all State highways maintained by it, regardless of whether such highways are within the corporate limits of a city or town. There is no provision in G.S. § 20-141 which supports the plaintiffs' contention. On the contrary, it is provided in G.S. § 20-141 (f 1): "Local authorities in their respective jurisdictions may in their discretion fix by ordinance such speed limits as they may deem safe and proper on those streets which are not a part of the State highway system and which are not maintained by the State Highway Commission * * *." (Emphasis added)

The fact that the area surrounding the intersection of U. S. Highway 311 and the Old Winston Road was annexed by the City of High Point, and was a part thereof at the time of the accident, is of no consequence with respect to the force and effect of the signs posted on the Highway by the State Highway Commission. This assignment of error is without merit and is therefore overruled.

The appellants assign as error the statement of the defendant's contentions with respect to the negligence of William Lewis Carroll in the court's charge and the submission to the jury of the issue of contributory negligence in each case. These assignments are based on the contention that the court should have held, as a matter of law, that any negligent conduct on the part of William Lewis Carroll, plaintiff C. O. Carroll's intestate, was insulated by the negligence of Roxie N. Jessup's intestate, Rufus Cruise Samuel. The plaintiffs rely on the cases of Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; and Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900.

The same contention was made by one of the defendants in Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939. In that case, the defendant Woodlief's automobile collided with the automobile of defendant Ray while the latter was attempting to turn into a driveway. There was evidence that Woodlief was operating his automobile at a speed of 80 to 90 miles per hour. Plaintiff's testate was a passenger in Ray's car. There was a judgment against both defendants in the lower court. On appeal, the judgment for the plaintiff was affirmed. This Court rejected defendant Woodlief's contention that if he was negligent, the negligence of defendant Ray insulated his negligence. We said: "The test of whether the negligent conduct of one tort feasor is to be insulated as a matter of law by the independent act of another, is well settled by our decisions. In Harton v. Forest City Telephone Co., 141 N.C. 455, 54 S.E. 299, the Court said: ``* * * the test * * * is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected * * *. We think it the more correct rule that, except in cases so clear that there can be no two opinions among men of fair minds, the question should be left to the jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could reasonably have expected them to occur as a result of his own negligent act. * * *'"

In our opinion, the cases relied on by the appellants herein are distinguishable and not controlling on the factual situation presented on this appeal.

We think that when the driver of the Valiant automobile entered a 35 miles per hour speed zone, at a plainly marked intersection, at a speed of 50 miles per hour, the driver of such car could have reasonably foreseen and expected that the driver of one of the several cars approaching the same intersection from the north on U. S. Highway 311, might turn left to enter the Old Winston Road. Therefore, we think the evidence disclosed on the record before us was sufficient to justify the submission of the issue of contributory negligence in each case. Jernigan v. Jernigan, 236 N.C. 430, 72 S.E.2d 912; Barker v. Gilbert Engineering Co., 243 N.C. 103, 89 S.E.2d 804.

The plaintiffs assign as error the ruling of the court below, as a matter of law, that the negligence, if any, of William Lewis Carroll would be imputed to Jettie Lee Cromer Carroll, and that the court instructed the jury that if the jury should answer the second issue "Yes" in the husband's case, it would answer the second issue "Yes" in the wife's case, or if the jury should answer the second issue "No" in the husband's case, then it would answer the second issue "No" in the wife's case.

There is no allegation as to the ownership of the Valiant automobile in the pleadings of either of the plaintiffs. The defendant, in her answer to the complaint filed by Marjorie C. Davis, administratrix of the estate of Jettie Lee Cromer Carroll, deceased, alleged ownership of the Valiant in Jettie Lee Cromer Carroll. This was denied in the reply of Marjorie C. Davis.

No evidence was voluntarily offered by the plaintiffs as to the ownership of the Valiant automobile. The court made its ruling on the basis of the testimony of Marjorie C. Davis on cross-examination by the defendant.

In our opinion, the uncontradicted testimony of plaintiff Marjorie C. Davis, elicited on cross-examination, amounted to an admission that her intestate was the owner of the Valiant automobile. Therefore, we hold that this case clearly falls under the rules set forth in Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543, in which Moore, J., speaking for the Court, said: "Where it is admitted or proven that the wife was owner-occupant of an automobile operated by her husband, a presumption arises that the husband was her agent in the operation, or rather the inference is permitted that any negligence on his part in the operation of the automobile is imputed to her. But such presumption or inference is not absolute and irrebuttable. But it casts upon her, who is in possession of the facts, the burden of showing a bailment, other disposition or prevailing condition by which she relinquished, for the time being, the incidents of ownership and the right to control the manner and methods of its use. Harper v. Harper, supra (225 N.C. 260, 34 S.E.2d 185); Sink v. Sechrest, 225 N.C. 232, 34 S.E.2d 2; Gaffney v. Phelps, 207 N.C. 553, 178 S.E. 231; Ross v. Burgan, supra (163 Ohio St. 211, 126 N.E.2d 592, 50 A.L.R.2d 1275).

"``The test is this: Did the owner, under the circumstances disclosed, have the legal right to control the manner in which the automobile was being operated—was his relation to the operation such that he would have been responsible to a third party for the negligence of the driver?' Harper v. Harper, supra * * *; Restatement of Torts, sec. 491 (1938).

"Where the owner-occupant of an automobile claims to be a guest in the vehicle while driven by another and the evidence with respect to such contention is susceptible of conflicting interpretations, it presents a question of fact for the jury. Harris v. Draper, supra (233 N.C. 221, 63 S.E.2d 209). ``Where, however, reasonable minds can reach but one conclusion from the uncontradicted facts, the question becomes one of law for the court.' 4 Cyc. of Automobile L. & P.; Blashfield, sec. 2292, p. 326."

Likewise, in the case of Eason v. Grimsley, 255 N.C. 494, 121 S.E.2d 885, this Court said: "The owner of an automobile, riding therein as a passenger, ordinarily has the right to control and direct its operation. The negligence, if any, of a party operating an automobile with the owner-passenger's permission or at his request is, nothing else appearing, imputed to the owner-passenger. Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543; Dosher v. Hunt, 243 N.C. 247, 90 S.E. 2d 374; Baird v. Baird, 223 N.C. 730, 28 S.E.2d 225."

We have examined the remaining exceptions and assignments of error and, in our opinion, no prejudicial error has been shown that would justify a new trial.

In the trial below, we find

No error.