Jones v. Horton , 264 N.C. 549 ( 1965 )

142 S.E.2d 351 (1965) 264 N.C. 549

Ivan D. JONES, Jr.
v.
Wesley Vernon HORTON and Morris Crawley Jones.

No. 531.

Supreme Court of North Carolina.

June 2, 1965.

Yarborough, Blanchard & Tucker, by Irvin B. Tucker, Jr., Raleigh, for plaintiff, appellee.

Dupree, Weaver, Horton & Cockman, by F. T. Dupree, Jr., and Jerry S. Alvis, Raleigh, for Wesley Vernon Horton, defendant, appellant.

SHARP, Justice.

Plaintiff's evidence, taken as true and considered in the light most favorable to him, was sufficient to withstand the motion for nonsuit. If Horton approached the intersection at a speed in excess of 60 MPH—and we must assume that he did, Hutchens v. Southard, 254 N.C. 428, 119 S.E. 2d 205—, he violated G.S. § 20-141 (b) and (c) and was thus guilty of negligence per se. Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734. Horton contends, however, that his speed was not a proximate cause of his collision with plaintiff; that his negligence was completely insulated by that of Jones when the latter entered No. 401 from a servient road directly in the path of Horton's approaching automobile. This contention is unsound. Plaintiff's evidence would permit the jury to find (1) that Horton's excessive speed made it impossible for him to control his automobile and (2) that Horton's failure to keep a proper lookout in the direction of his travel was the reason he did not see plaintiff's Austin-Healey leave the pavement at the moment it did. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197. It was not inevitable that Horton, because of Jones' negligence, should collide with plaintiff. Had Horton remained on the pavement, there would have been no collision. Under the evidence, it was for the jury to say whether Horton was traveling at an unlawful rate of speed without keeping a proper lookout and, if so, whether such negligence caused him to leave the pavement and collide with the Austin-Healey with such force that it was almost demolished. Conceding that Jones' entrance into the highway confronted Horton with a sudden emergency, plaintiff's evidence tends to show that Horton's excessive speed contributed to the emergency. Therefore, upon a consideration of the motion for nonsuit, it is due plaintiff that Horton not be given the benefit of the rule that one confronted by a sudden emergency will not be held to the wisest choice of conduct but only to such choice as a person of ordinary care and prudence, similarly situated, would have made. Lawing v. Landis, 256 N.C. 677, 124 S.E.2d 877.

Plaintiff's evidence makes out a prima facie case that the negligence of both Horton and Jones concurred in proximately causing plaintiff's injury and damage. Plaintiff could have sued either Horton or Jones separately; he elected to sue them jointly. "The mere fact that another is also negligent and the negligence of the two results in injury to the plaintiff does not relieve either." Green v. Isenhour Brick & Tile Co., 263 N.C. 503, 506, 139 S.E.2d 538, 540. And, if the jury erred in its finding that negligence on the part of Jones was not a proximate cause of plaintiff's injury and damage, on this record we are powerless to correct it, and it does not affect Horton's liability to plaintiff. Horton's motion for nonsuit was properly overruled. His demurrer ore tenus, interposed in this court upon the ground that it affirmatively appears from the complaint that the negligence of Jones insulated that of Horton, is likewise overruled.

Horton's second assignment of error raises the question of the admissibility of plaintiff's estimate of Horton's speed as he approached the intersection. It is the rule in this state that any person of ordinary intelligence who has had a reasonable opportunity to observe is competent to testify as to the rate of speed of an automobile. Darroch v. Johnson, 250 N.C. 307, 108 S.E.2d 589; Lookabill v. Regan, 247 N.C. 199, 100 S.E.2d 521; Hicks v. Love, 201 N.C. 773, 161 S.E. 394. In Darroch v. Johnson, supra, plaintiff's estimate of the speed of defendant's automobile as it approached him from the opposite direction, the estimate based upon an observation of 75-100 yards, was held admissible. Here plaintiff testified that he observed defendant's approach for a distance of 400-500 feet, or at least 130 yards, and that the speed of the Ford was so great that it was "swaying back and forth." Under the circumstances, even though it was nighttime, we cannot say as a matter of law that plaintiff did not have a reasonable opportunity to form an intelligent opinion as to the speed of Horton's vehicle. At night a witness may judge the speed of an automobile by the movement of its lights if his observation is for such a distance as to enable him to form an intelligent opinion. State v. Harrington, 260 N.C. 663, 133 S.E.2d 452. Plaintiff's opinion testimony that the Horton vehicle was traveling "in excess of 60 MPH, between 75-80 MPH" was competent. Its weight and credibility were for the jury. Ray v. French Broad Electric Membership Corp., 252 N.C. 380, 113 S.E.2d 806.

Defendant Horton's remaining assignments of error relate to the judge's charge, which we have examined carefully. In its entirety it fairly presented the case to the jury and contains no error prejudicial to Horton. His Honor made it quite clear that, whether Jones entered No. 401 at the right-angle intersection or from the cutoff, it was his duty to yield the right of way to Horton if he was approaching at such a speed or from such a distance that it was not safe for him to enter No. 401 until Horton had passed. The jury evidently took the view that Horton's negligence was the sole proximate cause of the collision in question. The issues of fact raised by the pleadings and the evidence were for the jury. Our jurisdiction is limited to matters of law and legal inference. N.C.Const., art. IV, sec. 8.

This appeal "will make no tremor on the face of the law if it fails," Harman, L. J., in W. v. W., [1961] pp. 113, 135, as we hold that it does.

No error.