Bass v. Lee

120 S.E.2d 570 (1961) 255 N.C. 73

George W. BASS
v.
Thelma Johnson LEE, H. P. Lee and Alver Bass.

No. 524.

Supreme Court of North Carolina.

June 16, 1961.

Wilson & Bain, Lillington, for appellee.

Teague, Johnson & Patterson, Raleigh, for appellant Lee.

Robert B. Morgan, Lillington, Fletcher, Lake & Boyce, Raleigh, for appellant Bass.

DENNY, Justice.

Each of the appealing defendants assigns as error the failure of the court below to sustain their respective motions for judgment as of nonsuit, made at the close of plaintiff's evidence and renewed at the close of all the evidence.

According to the evidence, there was a brick building at the northeastern intersection of North Clinton Avenue and East Edgerton Street; that one approaching the intersection from the north on North Clinton Avenue, when he reached a point 75 feet from the traffic light he could see a distance of 75 feet from the traffic light on East Edgerton Street. Likewise, one approaching the intersection from the east on East Edgerton Street, when he reached a point 75 feet from the traffic light he could see a distance of 75 feet from the traffic light on North Clinton Avenue.

There can be no question about the fact that these defendants entered the intersection at about the same time. Neither can there be any doubt about the fact that while each of these defendants traveled the last 75 feet before colliding with each other a few feet north of the center of the intersection, they could have seen each other approaching the intersection if they had looked and observed what they could and should have seen. Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330; Taylor v. Brake, 245 N.C. 553, 96 S.E.2d 686; Norris v. Johnson, 246 N.C. 179, 97 S.E.2d 773. Moreover, the evidence tends to show that when the defendant Bass was 40 feet from the stop light or 40 feet from the intersection (the plaintiff testified to both distances), the plaintiff warned him by saying, "Look out, Alver"; and the evidence further tends to show that the defendant Bass, notwithstanding this warning, made no effort to determine whether or not the defendant Mrs. Lee was going to stop and yield the right of way to him, nor did he apply his brakes, slow down, or make any attempt whatever to avoid the collision.

It is true the plaintiff alleged that the defendant Bass entered the intersection on a green light, but the testimony of the plaintiff himself, in support of his allegation in this respect, on direct examination, was that, "The light was green the only time I observed it. I was then approximately 75 feet from the intersection." On cross-examination he testified: "The first and only time that I saw the light that was controlling traffic in that intersection was when I was about 75 feet from it. At that time it was green for traffic on North Clinton Avenue. From then on I was watching for a collision to occur. I was not looking at the light at the time of the impact." It then becomes a question at to whether or not these defendants were guilty of negligence in entering the intersection without exercising reasonable care to determine whether or not the entrance into such intersection could be made with safety. The evidence tends to show that both appellants had sufficient time to stop before the collision if they had observed one another's presence as soon as their presence could and should have been observed. In fact, the testimony of the plaintiff himself was to the effect that each car was being driven so that it could have been brought to a stop in less than 40 feet.

In the case of Hyder v. Asheville Storage Battery Co., Inc., 242 N.C. 553, 89 S.E.2d 124, 126, the plaintiff, operator of a vehicle, stopped for a red traffic light. When he saw the light change, he started across the intersection, but he had only gone a short distance when his wife exclaimed, "Look out, that truck is `going to hit us'." The plaintiff jammed on his brakes and stopped, with the front of his automobile 17 feet into the intersection when the collision occurred. The plaintiff testified that he was not paying any particular attention, except to the green light. This Court held that the evidence warranted the submission of an issue as to the plaintiff's contributory negligence.

In the instant case, there is no evidence as to whether or not the defendant Alver Bass ever observed the traffic light or the approaching automobile operated by Mrs. Lee. He elected to offer no evidence in the trial below.

This Court said in the last cited case: "The duty of a driver at a street intersection to maintain a lookout and to exercise reasonable care under the circumstances is not relieved by the presence of electrically controlled traffic signals, which are intended to facilitate traffic and to render crossing less dangerous. He cannot go forward blindly even in reliance on traffic signals. 4 Blashfield, p. 244. The rule is well stated in 60 C.J.S. Motor Vehicles § 360b, pp. 854, 855 as follows:

"`A green traffic light permits travel to proceed and one who has a favorable light is relieved of some of the care which otherwise is placed on drivers at intersections, since the danger under such circumstances is less than if there were no signals. However, a green or "go" light or signal is not an absolute guarantee of a right to cross the intersection solely in reliance thereon, without the necessity of making any observation and without any regard to traffic conditions at, or other persons or vehicles within, the intersection. A green or "go" signal is not a command to go, but a qualified permission to proceed lawfully and carefully in the direction indicated. In other words, notwithstanding a favorable light, the fundamental obligation of using due and reasonable care applies.'"

"`The fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control * * *.' Cox v. Hennis Freight Lines, supra (136 N.C. 72, 72 S.E.2d 25)." McEwen Funeral Service, Inc. v. Charlotte City Coach Lines, 248 N.C. 146, 102 S.E.2d 816; Williams v. Sossoman's Funeral Home, 248 N.C. 524, 103 S.E.2d 714; Shoe v. Hood, 251 N.C. 719, 112 S.E.2d 543.

In Currin v. Williams, 248 N.C. 32, 102 S.E.2d 455, the automobile of the plaintiff and the automobile of the defendant collided under a stop light in the Town of Rocky Mount, North Carolina. The plaintiff had the green light and the defendant ran the red light. Plaintiff was traveling 15 to 20 miles an hour and the defendant was traveling 20 miles an hour. Plaintiff did not look to his right or to his left, but he could see the "broadness" of the street ahead. Plaintiff could have stopped within 10 feet. This Court said the plaintiff was not contributorily negligent as a matter of law, but that the issue was properly submitted to the jury as to the contributory negligence of the plaintiff. Likewise, in the factually similar cases of Wright v. Pegram, 244 N.C. 45, 92 S.E.2d 416, and Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452, this Court held the respective plaintiffs not guilty of contributory negligence as a matter of law but that the issue of contributory negligence in each case was properly submitted to the jury.

It was established in the trial below that the speed limit fixed by law on the streets in the area involved in the present action was 35 miles per hour. There was no evidence tending to show that either of the appellants exceeded this limit. Even so, it is provided in G.S. § 20-141, subsection (a) that, "No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing." It is further provided in subsection (c) of the same statute, as amended, that, the fact that the speed of a vehicle is lower than that fixed by statute "Shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * * or when special hazard exists with respect to pedestrians or other traffic * * * and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care." Butler v. Allen, 233 N.C. 484, 64 S.E.2d 561.

In our opinion, the plaintiff's evidence when considered in the light most favorable to him, as it must be on a motion for judgment as of nonsuit, was sufficient to carry the case to the jury against both appellants, and we so hold. These assignments of error are overruled.

The plaintiff in instituting this action alleged that the defendant Bass and the defendants Lee were jointly and concurrently negligent in causing the collision out of which his injuries arose. The answer of the defendants Lee alleged that the collision was caused solely by the acts of negligence of the defendant Bass. In a further answer and defense the defendants Lee alleged that if they are responsible for negligently causing the collision and the plaintiff's injuries, which they expressly denied, these defendants would be entitled to contribution from the defendant Bass in accordance with the General Statutes of North Carolina, § 1-240.

The defendant Bass filed a reply to the further answer of the defendants Lee, denying the allegations as to contribution. Thereafter, the defendants Lee paid the defendant Bass $465 for personal injuries and damage to property resulting from the collision involved in this action and obtained from Bass a covenant not to sue. When this cause came on for trial, the defendant Bass moved to amend his reply to the further answer and defense of the defendants Lee, in order to plead the covenant not to sue executed by the defendant Bass. The trial judge allowed the motion to amend, over the objection of the plaintiff and the defendants Lee, but refused to allow the reply as amended to be read to the jury. The court held that the execution of the covenant not to sue, which was stipulated by counsel for the several defendants, "constituted a matter of law for the court." Defendant Bass excepted to this ruling and assigns it as error.

Under the decisions of this Court, in an action against two defendants as joint tort-feasors, one of such defendants is not authorized to set up a plea for contribution against his codefendant. Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82.

In the instant case, since the plaintiff made out a case against both defendants, and the jury found that defendant Mrs. Lee and defendant Bass were guilty of negligence as alleged in the complaint, and a joint and several judgment was entered on the verdict, any right of contribution as between these defendants does not arise on this appeal. Furthermore, the covenant not to sue defendants Lee, executed by defendant Bass, had no bearing whatever on the liability of these defendants to the plaintiff herein. It was stipulated in the covenant not to sue that payment of the amount therein recited was not to be an admission of liability on the part of the Lees.

The plaintiff stated a cause of action against both defendants and procured his judgment on the cause of action alleged; therefore, the allegations of defendants Lee with respect to contribution, and the allegations of the defendant Bass with respect to the covenant not to sue, were mere surplusage and had no bearing on the cause of action alleged by the plaintiff. Moreover, we hold that to have permitted the defendant Bass to read his amended reply to the jury, or to have permitted him to introduce the covenant not to sue in evidence, would have been prejudicial to the plaintiff and to the defendants Lee. Ramsey v. Camp, 254 N.C. 443, 119 S.E.2d 209, and cited cases.

The appellants have set out in the record more than 50 assignments of error very few of which have been brought forward and discussed in the respective briefs. However, a careful examination of these assignments leads us to the conclusion that no prejudicial error that would justify a new trial has been shown by either appellant.

In the trial below, we find

No error.

BOBBITT, Justice (concurring in result).

For the reasons stated in the dissenting opinion in Greene v. Charlotte Chemical Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82, it is my opinion that, when two defendants are sued as joint tort-feasors, one defendant may, under G.S. § 1-240, allege a cross action against his codefendant for contribution with reference to the amount, if any, of plaintiff's recovery from the defendant who asserts such cross action. In all other respects, I concur in the Court's opinion.