Bennett v. Stephenson ( 1953 )

75 S.E.2d 147 (1953) 237 N.C. 377

BENNETT
v.
STEPHENSON.

No. 236.

Supreme Court of North Carolina.

March 18, 1953.

Neill McK. Salmon, Lillington, and Glenn L. Hooper, Jr., Dunn, for plaintiff-appellant.

Wilson & Johnson, Dunn, Robert H. Dye, Fayetteville, for defendant-appellee.

DEVIN, Chief Justice.

The plaintiff's appeal from the judgment of involuntary nonsuit rendered by the court below requires consideration of the plaintiff's evidence in the light most favorable for him. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; James v. Atlantic & East Carolina R. Co., 236 N.C. 290, 72 S.E.2d 682.

Making due allowance for the somewhat varying estimates of distance, speed and visibility in plaintiff's evidence, the overall picture presented is that of a collision between two automobiles on a clear day approaching a street intersection at approximately the same time. Hence the question of the negligence of the defendant whose automobile was approaching from plaintiff's right, and that of the plaintiff whose automobile was approaching from the defendant's left must be determined in the light of the duty imposed by the statute G.S. § 20-155(a), as interpreted by the decisions of this Court, notably in State v. Hill, 233 N.C. 61, 62 S.E.2d 532, and Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25.

The statute provides that when two automobiles approach an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. Under these circumstances the statute makes it the duty of the driver of the automobile on the left to yield the right of way to the automobile approaching from his right, and to permit it to pass before attempting to cross. The phrase right of way has been interpreted to mean "the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path." 60 C.J.S., Motor Vehicles, § 362, p. 865; State v. Hill, supra. The rule applies when two automobiles approaching an intersection and "their respective distances from the intersection, their relative speeds, and the other attendant circumstances show that the driver of the vehicle on the left should reasonably apprehend that there is danger of collision unless he delays his progress until the vehicle on the right has passed." State v. Hill, supra [233 N.C. 61, 62 S.E.2d 534].

When this situation at an intersection is made to appear the duty devolves upon the driver of the automobile on the left to observe the statute and permit the automobile approaching from his right to pass before attempting to enter the intersection. If the driver of the automobile on the left sees, or in the exercise of reasonable prudence should see an automobile approaching from his right in such a manner that apparently the two automobiles will reach the intersection at approximately the same time, it is his duty to decrease his speed, bring his automobile under control and if necessary stop, and to yield the right of way to the driver of the automobile on his right in order to enable him to proceed and thus avoid a collision. Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; Yost v. Hall, 233 N.C. 463, 64 S.E.2d 554. The law imposes this duty on the driver of an automobile approaching an intersecting highway unless the automobile coming from his right on the intersecting highway is a sufficient distance away to warrant the assumption that he can proceed before the other automobile operated at a reasonable speed reaches the crossing. Yost v. Hall, supra; Yellow Cab Co. v. Sanders, supra.

If, in the instant case, the two automobiles approached the intersection at approximately the same time, the driver of defendant's automobile, in approaching the intersection, had the right to assume that the driver of the automobile coming from her left would yield the right of way and stop or slow down sufficiently to permit her to pass in safety. Chaffin v. Brame, 233 N.C. 377, 64 S.E.2d 276. "One is not under the duty of anticipating disobedience of law or negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary a person is entitled to assume, and to act on the assumption, that others will obey the law and exercise ordinary care." Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25, 31. If, on the other hand, the automobile of the plaintiff approaching from the left reached the intersection first and had already entered the intersection, the driver of defendant's automobile was under duty, to permit the plaintiff's automobile to pass in safety. G.S. § 20-155(b); Davis v. Long, 189 N.C. 129, 136, 126 S.E. 321; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316. However, the evidence in the case at bar is insufficient to invoke this principle of law as determinative of the questions involved.

The fact that the defendant's automobile was being driven at the speed of 35 to 40 miles per hour in a residential district with no other vehicle in view would not prevent the application of the rule as to right of way for automobiles entering an intersection at the same time, in the absence of evidence that the speed of defendant's automobile proximately caused the collision. Cox v. Hennis Freight Lines, supra.

From consideration of the evidence plaintiff has offered, it seems reasonably clear that the plaintiff failed to maintain a proper lookout for automobiles approaching the intersection from his right and failed to see the defendant's automobile in time to avoid the collision.

Plaintiff's witness, the highway patrolman, testified that at a point 100 feet east of the intersection one could see 300 feet along the intersecting street to the right. Though plaintiff testified he looked to his right shortly before entering the intersection, yet he admitted he failed to see a moving object as obvious as an automobile approaching along the street from his right until the defendant's automobile was almost upon him, a distance of several feet. Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88. The collision occurred slightly west of the center of the intersection, and plaintiff's witness testified the skid marks from each automobile measured the same, 36 feet.

The facts in Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316, where the refusal to nonsuit was affirmed, were somewhat different from those in our case. There it did not appear that the two cars approached the intersection at approximately the same time.

We think the evidence insufficient to warrant submission to the jury, and that the judgment of nonsuit was properly entered.

Affirmed.