Clifton v. Turner

125 S.E.2d 339 (1962) 257 N.C. 92

Beeler E. CLIFTON
v.
Delma TURNER.

No. 534.

Supreme Court of North Carolina.

May 2, 1962.

Wood & Spence, Smithfield, for defendant-appellant.

J. R. Barefoot and C. P. Trader, Benson, for plaintiff-appellee.

BOBBITT, Justice.

Defendant's Assignments of Error Nos. 1 and 2 are based on his exceptions to the overruling of his motions for judgment of nonsuit. The only motion to be considered is that made by defendant at the conclusion of all the evidence. G.S. § 1-183; Spaugh v. City of Winston-Salem, 249 N.C. 194, 105 S.E.2d 610.

The evidence was in sharp conflict as to whether the plaintiff's station wagon struck defendant's Ford immediately after defendant entered upon Highway #50 or after defendant had proceeded north thereon for a distance of four hundred feet or more. It would seem the jury resolved this critical phase of the controversy in favor of plaintiff.

Defendant contends, even if the collision occurred immediately after defendant entered upon Highway #50, plaintiff's testimony discloses his contributory negligence as a matter of law. In this connection, it is noted that defendant alleged, as a basis for his plea of contributory negligence (and also as a basis for his counterclaim), that plaintiff's negligence consisted, inter alia, in operating his station wagon at excessive speed and without keeping a proper lookout. Even so, when considered in context, these allegations, as well as defendant's allegations with reference to plaintiff's negligence in other respects, relate to a collision defendant alleged occurred four hundred feet or more north of the intersection.

Defendant bases his contention largely upon this portion of plaintiff's testimony, elicited on cross-examination, to wit: "When I first saw the Turner car, it was about 50 feet from the intersection. I was 100 to 200 feet away at the time. It had already passed the stop sign and was moving, and I don't know whether he stopped at the stop sign. It went right on out in front of me, and I saw it pulling out. When I first saw the Turner car, I was 100 to 200 feet from it. I could then see the stop sign and saw he had already passed it, and I proceeded right on without slowing down. When I struck the Turner car we traveled Northwest toward Raleigh. When the cars stopped they were partly off the highway. I don't have any idea how fast the Turner car was going when I struck it. He was not going fast, he just passed right on out in front of me."

If, as plaintiff testified, defendant had passed the stop sign and was moving towards Highway #50 when plaintiff first saw him, this fact, standing alone, was insufficient to put plaintiff on notice defendant would fail to stop before entering Highway #50.

With reference to G.S. § 20-158(a), the legal principles stated below are well established.

"* * * the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives or should give notice to the contrary, he will be entitled to assume and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway." Winborne, J. (later C. J.), in Hawes v. Refining Co., 236 N.C. 643, 650, 74 S.E.2d 17; King v. Powell, 252 N.C. 506, 509, 114 S.E.2d 265; Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450; Wooten v. Russell, 255 N.C. 699, 122 S.E.2d 603.

G.S. § 20-158(a) did not require that defendant stop where the stop sign was located. It required that defendant, in obedience to the notice provided by the stop sign, bring his car to a full stop before entering Highway #50 and to yield the right of way to vehicles approaching the intersection on Highway #50. As stated by Denny, J. (now C. J.), in Edwards v. Vaughn, 238 N.C. 89, 93, 76 S.E.2d 359: "The purpose to be served by placing a stop sign some distance from the intersection of a servient and dominant highway, is to give the motorist ample time to slow down and stop before entering the zone of danger. And when the driver of a motor vehicle stops at a stop sign on a servient highway and then proceeds into the intersection without keeping a lookout and ascertaining whether he can enter or cross the intersecting highway with reasonable safety, he ignores the intent and purpose of the statute, G.S. § 20-158. It is the duty of the driver of a motor vehicle on such servient highway to stop at such time and place as the physical conditions may require in order for him to observe traffic conditions on the highways and to determine when, in the exercise of due care, he may enter or cross the intersecting highway with reasonable safety. In many places, stop signs due to the surrounding physical conditions are located at points from which the driver of a motor vehicle cannot get an unobscured vision of the intersecting highway for a sufficient distance to ascertain whether it can be entered or crossed with reasonable safety." It is noted that defendant testified: "You have to drive past the stop sign to see on Highway 50."

If it be conceded, as contended by defendant, that plaintiff, under the circumstances, was negligent in failing "to decrease speed when approaching and crossing an intersection," G.S. § 20-141(c), whether such negligence was a proximate cause of the collision was for jury determination under appropriate instructions.

There was ample evidence to support a finding that negligence on the part of defendant proximately caused the collision; and defendant's contention that plaintiff's testimony discloses his contributory negligence as a matter of law is untenable. Hence, defendant's assignments of error, directed to the court's denial of his motions for judgment of nonsuit, are overruled.

Defendant's remaining assignments of error, except formal Assignment No. 7, are based on his exceptions to the court's charge. Assignments of Error Nos. 3, 4, 5 and 6 are based on exceptions taken to extended excerpts from the charge. Defendant fails to point out any portion of these excerpts he considers erroneous. Rather, he asserts he was prejudiced because these excerpts did not include instructions defendant contends should have been given. "It is elemental that an exception to an excerpt from the charge ordinarily does not challenge the omission of the court to charge further on the same or another aspect of the case." Peek v. Trust Co., 242 N.C. 1, 16, 86 S.E.2d 745; King v. Powell, supra. It is also noted that "an exception to a portion of a charge embracing a number of propositions is insufficient if any of the propositions are correct." Powell v. Daniel, 236 N.C. 489, 493, 73 S.E.2d 143, and cases cited.

Exception No. 8 is as follows: "The Defendant Appellant objects and excepts to the charge of the Court as a whole, for that the Court did not declare and explain the law arising on the evidence given in the case as it was required to do under the terms and provisions of GS 1-180, and particularly with reference to the Second Issue submitted to the jury." Assignment of Error No. 8, based on Exception No. 8, is as follows: "For that the Court erred in failing to charge the jury under the provisions of General Statutes 1-180 and to explain and declare the law arising on all the pleadings in the Complaint and in the Answer, and particularly, it failed to explain and declare the law arising upon the factual situation under General Statutes 20-149."

Exception No. 8 and Assignment of Error No. 8 are broadside, ineffectual and too general and indefinite to present any question of law for decision. Baird v. Baird, 223 N.C. 730, 733, 28 S.E.2d 225; Strong, North Carolina Index, Appeal and Error § 24, Note 283.

Apparently, all of defendant's exceptions and assignments of error directed to the charge relate to a contention by defendant that the court did not, but should have instructed the jury as to the provisions of G.S. § 20-149 as related to the contributory negligence issue. Apart from procedural defects, we are of opinion G.S. § 20-149 was not applicable to the factual situation disclosed by the evidence. Under plaintiff's version of the collision, defendant's car came into Highway #50 directly in front of him and he could not, in the emergency thus created, turn to his left sufficiently to avoid striking defendant's car. Under defendant's version, plaintiff, on account of a coating of frost on his windshield or otherwise, failed to see defendant's car traveling in the northbound lane and simply crashed into the back of it. With reference to the second issue, the court instructed the jury, inter alia, (1) if plaintiff followed defendant's car more closely than was reasonable and prudent, in violation of G.S. § 20-152(a), plaintiff would be guilty of negligence per se, and (2) that plaintiff would be guilty of negligence if, under the circumstances, he failed to exercise due care to avoid a collision with defendant's car.

Whether the jury erred in resolving the issues in favor of plaintiff is not for our determination. Suffice to say, defendant's assignments of error fail to disclose the court erred in the manner in which the trial was conducted.

No error.