Fox v. Hollar

125 S.E.2d 334 (1962) 257 N.C. 65

Willie Vernon FOX
v.
William Lee HOLLAR, R. J. Shell and Son, a Corporation, Lillie Mae Combs, and Rudolph Bobby Arnette.

No. 389.

Supreme Court of North Carolina.

May 2, 1962.

R. A. Hedrick, Jay F. Frank, Statesville, for plaintiff appellant.

Collier, Harris & Collier, Statesville, for defendant Arnette, appellee.

Adams & Dearman, C. B. Winberry, Statesville, for defendant Combs, appellee.

Raymer & Raymer, John G. Lewis, Jr., Statesville, for defendants William Lee Hollar and R. J. Shell & Son, appellees.

SHARP, Justice.

The plaintiff assigns as error the failure of the trial judge to instruct the jury as to certain duties which he alleged in the complaint were owed to him by the defendants William Lee Hollar and Mrs. Lillie Mae Combs, the operators of two of the vehicles involved in the three-car collision, and the granting of the nonsuit as to the defendant Rudolph Bobby Arnette, the operator of the third vehicle. We will consider first the assignments of error which relate to the defendants William Lee Hollar and R. J. Shell & Son, Inc.

The trial judge instructed the jury, in effect, that if they found that the defendant Hollar was operating the oil truck on the occasion in question at a speed which was greater than was reasonable and prudent considering the weather, the condition of the highway, and the traffic on it, that such speed would be negligence per se, and if they further found that such negligence was one of the proximate causes of the collision which occurred, they would answer the issue of negligence as to the defendants Hollar and R. J. Shell & Son, Inc., Yes; otherwise, No. He thus limited the jury's consideration of negligence on the part of these two defendants to the speed of the truck.

In addition to speed the plaintiff alleged that a failure on the part of the defendant Hollar to keep a proper lookout, a failure to have the truck under proper control, and a failure to equip the truck with chains was negligence proximately contributing to the collisions in which he was injured. The plaintiff assigns as error the failure of the judge to instruct the jury upon the duties which, he contended, defendant Hollar owed to him based on these allegations. However, there was no evidence requiring a charge on these allegations. Allegation without proof is unavailing. Messick v. Turnage, 240 N.C. 625, 83 S.E.2d 654. Except for the testimony that the truck approached the intersection at a speed of from 40 to 50 miles per hour, these defendants would have been entitled to a nonsuit when the plaintiff rested his case. Speed of 40 miles per hour on a highway on which snow is beginning to stick may be excessive. Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734.

Although there was evidence that the collision between the truck and the Combs car occurred about the center of the highway, the complaint contains no allegation that the oil truck ever crossed over the center line to its left. Plaintiff must make out his case according to his allegations and the court cannot take notice of any proof unless there is a corresponding allegation. Lucas v. White, 248 N.C. 38, 102 S.E.2d 387.

The contention of the plaintiff that the defendant Hollar's speed was excessive under the weather and highway conditions then existing, and that it constituted one of the proximate causes of the resulting collision, was submitted to the jury under instructions to which no error is assigned on that count. The jury's verdict established that the plaintiff was not injured by the negligence of these two defendants. In the trial as to them we find no error.

The judge likewise limited the jury's consideration of negligence on the part of the defendant Combs to the single element of speed. In addition to excessive speed the plaintiff alleged that the defendant Combs, the operator of the car in which plaintiff was riding, was negligent in that she failed to keep a proper lookout, failed to have her car under proper control, and failed "to keep her automobile properly and adequately equipped under the circumstances." If this latter allegation be held to refer to the absence of chains, it cannot be said, under the circumstances of this case, that a failure to put on chains within the first eight to ten miles after snow began to fall was evidence of negligence. There was no evidence that Mrs. Combs failed to keep a proper lookout.

The evidence upon which the plaintiff predicates his case against the defendant Combs is that at a speed of from five to 10 miles per hour, while attempting to make a right turn, she skidded into the path of the approaching truck. The judge left it to the jury to say whether or not such speed was excessive considering the weather, the traffic and the amount of snow on the highway. The jury found that it was not. The remaining question in the case against the defendant Combs is whether there was any evidence tending to show a lack of proper control on her part which required the judge to submit that allegation to the jury. We hold there was not.

Cars may skid or slip on roads "without fault either on account of the manner of handling the car or on account of its being there." Clodfelter v. Wells, 212 N.C. 823, 195 S.E. 11. Of course, "the skidding of an automobile, while being driven on a road or highway, may or may not be due to the fault of the driver. It is only when it was due to the fault of the driver * * * that the driver can be held liable for damages resulting therefrom." Butner v. Whitlow, 201 N.C. 749, 161 S.E. 389; Redden v. Bynum, supra. The mere fact that the Combs car went into a skid at five to ten miles per hour, without more, is not evidence of negligence. As to the defendant Combs, we find no error in the trial.

We come now to the question of whether the judge erred in granting the motion of defendant Arnette for judgment of nonsuit at the close of all the evidence. The plaintiff alleged a sequence of events on the part of the three defendants which successively, concurrently, and jointly produced the injuries for which he seeks to recover. Riddle v. Artis et al., 243 N.C. 668, 91 S.E.2d 894. He alleged that the negligence of Arnette in this sequence consisted, inter alia, in following the Combs vehicle too closely.

In determining the legal sufficiency of testimony to withstand a motion for compulsory nonsuit after all the evidence on both sides is in, the testimony is interpreted most favorable to plaintiff, and is most strongly against defendant. Furthermore, plaintiff is given the benefit of every inference favorable to him that can be legitimately drawn from such facts. Any evidence presented by defendant which contradicts that of plaintiff, or tends to establish a different set of facts is ignored and all the evidence which tends to support the plaintiff's claim is assumed to be true. Cozart v. Hudson, 239 N.C. 279, 78 S.E.2d 881.

Subjecting the plaintiff's testimony against Arnette to these rules, it makes out the following case for the plaintiff:

In a snow storm Arnette had been following immediately behind the Combs car for one-fourth mile on a highway which was fast being covered with snow. Although Mrs. Combs had given a right turn signal about 50 feet from the intersection, the Arnette car was only 15 to 20 feet, less than two car lengths, behind her when she started to turn. After the Combs car went into the skid and collided with the truck, the defendant Arnette was unable to avoid running into it because of his proximity, and he hit her car on the right rear fender causing it to turn around and go into the ditch. The plaintiff testified that "the three cars hit about the same time."

G.S. § 20-152(a) provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, with regard to the safety of others and due regard to the speed of such vehicles and the traffic upon and the condition of the highway." A violation of this statute is negligence per se and, if injury approximately results therefrom, it is actionable. Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184.

Upon the evidence it was for the jury to say whether the defendant Arnette, considering the condition of the highway and the hazards of driving in the snow, was following the Combs car more closely than a reasonably prudent person would have done under the circumstances and, if so, what injury, if any, his negligence proximately caused the plaintiff.

However, plaintiff can no longer proceed upon the theory that his injuries were the cumulative effect of successive, joint and concurring torts; but he is entitled to show, if he can, that negligence on the part of the defendant Arnette proximately caused him injury. He can recover from the defendant Arnette for only those injuries he may have suffered in the collision between the Combs car and the Arnette car. 25 C.J.S. Damages § 27, p. 493.

As to the defendants Hollar, R. J. Shell & Son, Inc., and Lillie Mae Combs—

Affirmed.

As to the defendant Arnette—

New trial.