Carr v. Lee

107 S.E.2d 544 (1959) 249 N.C. 712

Emma CARR, Administratrix of Elijah Carr, Jr.,
v.
Matthew LEE.

No. 164.

Supreme Court of North Carolina.

March 18, 1959.

Everett, Everett & Everett and C. J. Gates, Durham, for plaintiff, appellant.

Elkins & Calder, R. E. Calder and Royce S. McClelland, Wilmington, for defendant, appellee.

MOORE, Justice.

The sole question for decision in this case is whether or not the court erred in granting the motion for judgment of involuntary nonsuit.

The plaintiff contends that the evidence offered by her made out a prima facie case of actionable negligence.

The plaintiff is entitled to have the evidence considered in the light most favorable to her and to have the benefit of every reasonable inference to be drawn therefrom. Primm v. King, 249 N.C. 228, 106 S.E.2d 223.

The plaintiff asserts that the actionable negligence of the defendant consisted of his failure to maintain a reasonable lookout, failure to keep his motor vehicle under proper control, and failure to apply brakes.

There is no evidence in the case to support, inferentially or otherwise, the view that the Buick driven by Marion Wright, Jr., entered the intersection first. The defendant's testimony, offered by the plaintiff, discloses that he reduced speed and was driving at less than 15 miles per hour and in second gear at the time of the collision; that the collision took place about the center of the intersection; and that the Buick came from his left. This evidence is uncontradicted. There were no traffic signs at the intersection. Plaintiff solemnly alleges that Marion Wright, Jr., operated the Buick at an "unlawful speed of 50 miles per hour in a 35 mile zone * * * and permitted it to enter into said intersection * * * at such unlawful, dangerous and excessive rate of speed * * * and he failed properly to apply the brakes * * * and slacken its speed * * *" The physical evidence tends to bear out the testimony of defendant and the said allegations of plaintiff, or at least is not inconsistent therewith. This is particularly true as regards the respective distances traveled by the vehicles before coming to rest and the damaged parts of the vehicles. Physical facts at the scene of a collision often speak louder than testimony of witnesses. State v. Hancock, 248 N.C. 432, 103 S.E.2d 491.

The conclusion is inescapable that the vehicles entered the intersection at approximately the same time, or that the defendant's vehicle entered first. In either case the defendant had the right of way, that is, the right to proceed uninterruptedly in a lawful manner in the direction in which he was moving in preference to another approaching from a different direction into his path. State v. Hill, 233 N.C. 61, 62 S.E.2d 532; G.S. § 20-155(a, b). The defendant was under no duty to anticipate disobedience of law or negligence on the part of others, but in the absence of anything which put him on notice, or should have put him on notice, to the contrary, he was entitled to assume, and to act on the assumption, that others would obey the law, exercise reasonable care and yield to him the right of way. Bennett v. Stephenson, 237 N.C. 377, 75 S.E.2d 147.

However, one who has the right of way at an intersection does not have the absolute right of way in the sense that he is not bound to use ordinary care in the exercise of his right. When he sees, or by the exercise of due care should see, that an approaching driver cannot or will not observe the traffic laws, he must use such care as an ordinarily prudent person would use under the same or similar circumstances to avoid collision and injury. His duty under such circumstances consists in keeping a reasonable lookout, keeping his vehicle under control, and taking reasonable precautions to avoid injury to persons and property. Primm v. King, supra; Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383.

In the instant case the evidence discloses nothing which would have, if observed, reasonably put the defendant on notice of a possible collision in time for him to have taken measures to avoid it. See Lucas v. White, 248 N.C. 38, 102 S.E.2d 387.

It is true that the driver of a motor vehicle is charged with the duty at all times of keeping such a lookout as an ordinarily prudent person would keep under the same or similar circumstances. Smith v. Kinston, 249 N.C. 160, 105 S.E.2d 648. The duty is not only to look, but to see what ought to have been seen. Keener v. Beal, 246 N.C. 247, 98 S.E.2d 19.

The defendant testified that he looked westwardly on Church Street, but did not at any time before the collision see the Buick approaching. He stated that he could have seen it if its lights had been burning. In any event, it is impossible to understand how the defendant could have reasonably avoided the collision under the circumstances of this case even if he had seen the Buick approaching. He had the right to assume that a vehicle approaching from his left would stop and yield to him the right of way. Considering his position, the size of the intersection, the speed of the approaching vehicle, and the point at which he might have reasonably discovered that the Buick would not stop and yield the right of way, it would not have been reasonably possible for him to avoid the collision even if he had seen the approaching vehicle and realized the danger.

Assuming that his failure to see the approaching vehicle was negligence, it could not under the circumstances have been a proximate cause of the collision. Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683.

As for the contention that defendant did not apply brakes, the matter of applying brakes is part and parcel of proper control. And proper control is the twin brother of reasonable lookout. When the duty of reasonable lookout has been performed and avoidable danger has been discovered, the duty to control arises. We have already said in effect that under the circumstances in this case the defendant could not have reasonably discovered the peril in time to control his vehicle in such manner as to avoid the collision.

Similar situations existed in Brady v. Nehi Beverage Co., 242 N.C. 32, 86 S.E.2d 901, and Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919. The principles applied in those cases have application here.

We point out that the defendant denied the allegation of plaintiff that she was the duly qualified and acting administratrix of the deceased, Elijah Carr, Jr. No evidence was offered by plaintiff that she was such administratrix and had right to maintain the action. G.S. § 28-173. The want of such evidence alone is sufficient to sustain the nonsuit even if there were no other ground for so doing.

Affirmed.