Snider v. Dickens , 293 N.C. 356 ( 1977 )

237 S.E.2d 832 (1977) 293 N.C. 356

Brantley Lindsay SNIDER, Plaintiff,
v.
Darrell Wayne DICKENS, Defendant-Third Party Plaintiff,
v.
Kenneth Douglas SNIDER, Third-Party Defendant.

No. 20.

Supreme Court of North Carolina.

October 11, 1977.

Haworth, Riggs, Kuhn, Haworth & Miller by John Haworth, High Point, for defendant-third party plaintiff.

Walser, Brinkley, Walser & McGirt by Charles H. McGirt and G. Thompson Miller, Lexington, for third-party defendant.

COPELAND, Justice.

The defendant's principal assignment of error is the failure of the trial court to grant a directed verdict or judgment notwithstanding the verdict in his favor. The motion for judgment notwithstanding the verdict under G.S. 1A-1, Rule 50(b) is simply a motion that judgment be entered in accordance with the movant's earlier motion for a directed verdict, notwithstanding the contrary verdict reached by the jury; therefore, we must utilize the same standard of sufficiency of the evidence in reviewing both motions. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974). "In passing upon such a motion, the court must consider the evidence in the light most favorable to the non-movant. [citation omitted]. That is, the evidence in favor of the non-movant must be deemed true, all conflicts in the evidence must be resolved in his favor and he is entitled to the benefit of every inference reasonably to be drawn in his favor." Summey v. Cauthen, 283 N.C. 640, 647, 197 S.E.2d 549, 554 (1973).

Taking the evidence in the light most favorable to the plaintiff, the following facts must be considered as true: The view along Highway 109 south of the intersection was unobstructed. The plaintiff stopped at the stop sign and then proceeded into the intersection a distance of some 20 to 25 feet to the point at which the collision occurred. As he drove into the intersection, the plaintiff's car was traveling so slowly that the speedometer did not register. At this speed he could have stopped almost immediately, and did so before the collision, with the front of his car in the middle of the left northbound lane, some 3 or 4 feet from the center turning lane, which was clear of traffic when the accident occurred. The defendant was traveling between 35 and 45 miles per hour as he entered the intersection on Highway 109, on which the posted speed limit was 45 miles per hour. The northbound tractor-trailer had completed its turn onto Kennedy Road and was as much as twice its own length into Kennedy Road when the defendant reached the intersection. Defendant did not see plaintiff's vehicle until "right before it hit"; thus, he did not blow his horn, apply his brakes or veer from the left northbound lane prior to the collision.

While a driver on a dominant highway has a duty to drive no faster than is safe under the circumstances, to keep his vehicle under control, to maintain a reasonably careful lookout, and to take reasonably prudent steps to avoid a collision whenever necessary, Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373 (1954), he is entitled to assume, even to the last moment, that a driver on a servient highway will comply with the law and stop before entering the dominant highway. Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305 (1955). "It is even more reasonable for him to assume until the last moment that a motorist on the servient highway who has actually stopped in obedience to the stop sign will yield the right of way to him and will not enter the intersection until he has passed through it." Raper v. Byrum, 265 N.C. 269, 275, 144 S.E.2d 38, 42 (1965).

In the instant case plaintiff, while conceding his original negligence, contends that third party defendant was concurrently negligent in failing to maintain a proper lookout, which rendered him unable to take steps to avoid the accident. As evidence of this plaintiff points to defendant's statement that the tractor-trailer was clear of the intersection at the time he reached it. From this we are asked to conclude that defendant had an unobstructed view of the intersection and therefore should have seen plaintiff easing into it in sufficient time to permit him to avoid the collision.

Yet, even if defendant had seen plaintiff's car as it crept into the intersection, he had a right to assume to the last possible moment, that plaintiff would yield the right of way to him. Raper v. Byrum, supra. The reasonableness of this assumption would be reinforced by the relative snail's pace of plaintiff's vehicle as he traversed the intersection, since this would seem to indicate that he was on the lookout for oncoming cars and would halt immediately to let them pass. This conclusion is further supported by plaintiff's statement that he was struck almost instantaneously after he stopped, from which we can deduce that defendant was almost upon the plaintiff when the latter entered the left lane and there would have been no time to avoid the collision. Thus, even if we accept plaintiff's assertion that defendant had an unobstructed view of the intersection, on these facts defendant's failure to see plaintiff's vehicle until just before the collision would not be a concurring proximate cause of the accident. Defendant was entitled to assume that plaintiff would yield the right of way to him and allow defendant to pass safely. For this reason, defendant's motion for judgment notwithstanding the verdict on the third party claim should have been granted. Our decision on this issue renders it unnecessary for us to consider defendant's other assignments of error as to the trial court's charge to the jury and its failure to grant new trial.

For the foregoing reasons, the decision of the Court of Appeals is REVERSED.