Sheldon v. Childers

82 S.E.2d 396 (1954) 240 N.C. 449

SHELDON
v.
CHILDERS et al.

No. 530.

Supreme Court of North Carolina.

June 4, 1954.

Taliaferro, Grier, Parker & Poe, Charlotte, for plaintiff, appellant.

Kennedy, Kennedy & Hickman and Charles E. Knox, Charlotte, for defendants, appellees.

PARKER, Justice.

Is the evidence of the plaintiff, taken for him in its most favorable light, sufficent to survive the challenge of the motion for judgment of nonsuit? The trial court decided No, and we agree.

It is to be noted that the plaintiff does not say the tractor trailer unit showed no signal indicating a left turn. His testimony is, "No type of turn signal was given that I was able to see." Moore v. Boone, 231 N.C. 494, 57 S.E.2d 783; Hollingsworth v. Grier, 231 N.C. 108, 55 S.E.2d 806. It is also significant that W. D. Sawyer, a State Patrolman and witness for the plaintiff, who arrived on the scene about 20 minutes after the collision, testified on cross-examination, he examined the signal light on the rear of the trailer there; the light worked when it was turned on, and was visible from the rear of the trailer; it showed a red arrow when the switch was turned on.

However it may be, as to whether sufficient evidence of negligence on the part of the defendants was offered at the trial, it clearly appears from the plaintiff's own evidence that he was guilty of contributory negligence, and when such facts appear a compulsory nonsuit is proper. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730.

The plaintiff's negligence to bar recovery need not be the sole proximate cause of injury. It suffices, if it contribute to his injury as a proximate cause, or one of them. Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251; Parkway Bus Co. v. Coble Dairy Products Co., 229 N.C. 352, 49 S.E. 2d 623; Moore v. Boone, supra.

It seems clear that the plaintiff was either failing to keep a reasonably careful lookout, or was driving at an excessive rate of speed under the conditions then existing. The plaintiff pulled into the left lane of traffic to pass, and when he was about 200 feet from the tractor trailer which was travelling 10 to 15 miles an hour, it pulled into the left lane of traffic to enter the Mar-Grace Mill Road, and stopped. Plaintiff applied his brakes, which held, and skidded some 157 feet—some 66 feet forward and some 91 feet sideways—until the front end of his automobile was stopped by and underneath the high body of the trailer. The length and manner of the skid marks are stubborn things and flinch not; and these "physical facts speak louder than the witness." (Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887, 889) as to plaintiff's excessive speed. It also seems clear that if plaintiff had been keeping a reasonably careful lookout, and not travelling at an excessive rate of speed, he could have safely passed on the right edge of the pavement and the right shoulder which was level with the pavement. The conclusion is inescapable that plaintiff's negligence contributed to his injury. Moore v. Boone, supra; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Austin v. Overton, supra.

The plaintiff contends that his case is controlled by Carolina Casualty Ins. Co. v. Cline, 238 N.C. 133, 76 S.E.2d 374. The facts are different. In the Cline Case when plaintiff's automobile and defendant's truck were running side by side, the truck turned sharply to the left without any signal or warning onto the left half of the highway. The plaintiff also relies upon Grimm v. Watson, supra. The facts are not similar. In the Grimm case the plaintiff was travelling about 35 miles an hour, and the evidence of plaintiff was that the bus driver in front turned the bus sharply to the left without any signal, when the front of plaintiff's car was abreast the rear wheels of the bus. The plaintiff further cites Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401, which is not similar to the instant case. In that case Bingham, when 75 feet from the intersecting side road, turned to the left.

G.S.N.C. § 20-149(b) requires every motorist not within a business or residential district shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle going in the same direction. A violation of this statute is negligence per se. Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876. This warning must be given to the driver of the vehicle in front in reasonable time to avoid injury which would probably result from a left turn. Lyerly v. Griffin, supra. The plaintiff testified that he blew his horn when he was about 400 feet behind. This would seem to be not in apt time for defendant's driver to have heard it from that distance behind.

It seems to us that the sole inference to be drawn from plaintiff's evidence is that plaintiff's negligence was one of the proximate causes of his injury and damage, and that the plaintiff has proved himself out of court. Lyerly v. Griffin, supra; Austin v. Overton, supra; Wright v. Southern R. Co., 155 N.C. 325, 71 S.E. 306.

Having reached this conclusion, it is not necessary for us to decide as to whether plaintiff violated G.S. § 20-150(c), which states that the driver of a vehicle shall not overtake any other vehicle proceeding in the same direction at any intersection of a highway, unless permitted so to do by a traffic or police officer.

The judgment of the lower court is

Affirmed.