Simmons v. Rogers

100 S.E.2d 849 (1957) 247 N.C. 340

G. E. SIMMONS
v.
Willie Buck ROGERS and Shirley Jean Rogers, a minor, and Willie Buck Rogers, as guardian ad litem for Shirley Jean Rogers.

No. 595.

Supreme Court of North Carolina.

December 11, 1957.

Haworth & Haworth, High Point, and Jordan, Wright & Henson, Greensboro, for defendant appellants.

Smith, Moore, Smith, Schell & Hunter, Greensboro, and Richmond G. Bernhardt, Jr., Greensboro, for plaintiff appellee.

DENNY, Justice.

It appears from a motion filed in this Court that the defendant Willie Buck Rogers died intestate on 12 June 1957. That on 15 August 1957, while this cause was pending in the Supreme Court, Lucille Rogers was duly appointed administratrix of the estate of Willie Buck Rogers. It further appears from the motion that when this action was instituted on 5 April 1956 the defendant Shirley Jean Rogers was a minor, which required the appointment of a guardian ad litem. But when this matter came on for trial at the April Civil Term 1957 of the Superior Court of Guilford County (Greensboro Division), Shirley Jean Rogers was then 21 years of age. Therefore, we hold that it is not necessary for a new guardian ad litem to be appointed for Shirley Jean Rogers. She will now be treated as a party defendant, defending this action in her own right. The motion to make Lucille Rogers, administratrix of the estate of Willie Buck Rogers, a party is granted and she is hereby made a party defendant as authorized by Rules 37, Rules of Practice in the Supreme Court, 221 N.C. 566.

The sole assignment of error is to the refusal of the court below to sustain the defendants' motion for judgment as of nonsuit interposed at the close of plaintiff's evidence and renewed at the close of all the evidence.

The defendants contend that the evidence adduced in the trial below was insufficient to show any actionable negligence on the part of the defendant Willie Buck Rogers and that it was error to submit the case to the jury. They further contend, however, that if the defendant Willie Buck Rogers was guilty of negligence, the facts clearly show that the plaintiff was guilty of contributory negligence as a matter of law.

We do not concur in these contentions. There was ample evidence to carry the case to the jury. In fact, the evidence of the defendant Willie Buck Rogers is sufficient to establish these facts. After he entered U. S. Highway 29-70, he observed the plaintiff's car approaching from the south, some 500 feet from where he entered the highway; that from that time until the moment of the crash he never looked for or saw the plaintiff's car. Likewise, while traveling in the right north-bound lane of the highway and just before he got to the end of the island where he was going to cross the left north-bound lane and turn back into a south-bound lane, according to his evidence he discontinued his signal for a left turn and rolled up the glass in the left front door while he was still driving straight down the highway in the right-hand north-bound lane. This evidence not only explains the evidence of the plaintiff but it supports the plaintiff's evidence to the effect that the driver of the Rogers car suddenly swerved from the right-hand lane into and across the left north-bound lane in front of plaintiff's oncoming automobile.

On a motion for judgment as of nonsuit, we will not only consider evidence offered by the plaintiff but that offered by the defendant which is favorable to the plaintiff or not in conflict therewith, or when it may be used to clarify or explain the plaintiff's evidence. Godwin v. Johnson Cotton Co., 238 N.C. 627, 78 S.E.2d 772; Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543; Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Hobbs v. Drewer, 226 N.C. 146, 37 S.E.2d 121; Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598.

G.S. § 20-153(a) provides that, "* * * the driver of a vehicle intending to turn to the right at an intersection shall approach such intersection in the lane for traffic nearest to the right-hand side of the highway, and in turning shall keep as closely as practicable to the right-hand curb or edge of the highway, and when intending to turn to the left shall approach such intersection in the lane for the traffic to the right of and nearest to the center of the highway, and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right thereof before turning such vehicle to the left. When a vehicle is being operated on a three-lane street or highway, the driver thereof intending to turn to the left at an intersection shall approach the intersection in the lane nearest to the center of the highway and designated for use by vehicles traveling in the same direction as the vehicle about to turn."

Furthermore, it is required by G.S. § 20-154(a) that, "The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, * * and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement. * * * All hand and arm signals shall be given from the left side of the vehicle and all signals shall be maintained or given continuously for the last one hundred feet traveled prior to stopping or making a turn." The evidence of the defendant Willie Buck Rogers clearly shows that he made no effort whatever to ascertain whether or not a left turn of his motor vehicle could be made in safety.

The plaintiff testified that the driver of the Rogers car gave no signal before turning left across the highway. Upon a motion for nonsuit, plaintiff's evidence is to be taken as true and must be considered in the light most favorable to him. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Register v. Gibbs, 233 N.C. 456, 64 S.E.2d 280; Sessoms v. McDonald, 237 N.C. 720, 75 S.E.2d 904; Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147.

As pointed out in Erwin v. Cannon Mills Co., supra [233 N.C. 415, 64 S.E.2d 434], by Devin, J., later C. J., "We do not regard the requirement in G.S. § 20-154, that a prescribed hand signal be given of intention to make a left turn in traffic, as constituting in all cases full compliance with the mandate also expressed in this statute that before turning from a direct line the driver shall first see that such movement can be made in safety, nor do we think the performance of this mechanical act alone relieves the driver of the common law duty to exercise due care in other respects."

A violation of G.S. § 20-153(a) constitutes negligence per se and such negligence is actionable if it proximately causes injury to another. Ervin v. Cannon Mills Co., supra; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565.

If we consider all the evidence in this case, including that of the defendants, which is not in conflict with the plaintiff's evidence, it is sufficient to support the view that the driver of the Rogers car not only failed to give that give a signal for a left turn, as required by G.S. § 20-154, but that he failed to approach the area, at the end of the island where he intended to turn left, in the proper lane, as required by G.S. § 20-153(a).

Now, as to the contention of the defendants that the evidence of the plaintiff clearly shows that he was guilty of contributory negligence as a matter of law.

A nonsuit on the ground of contributory negligence should not be granted unless the plaintiff's evidence, taken in the light most favorable to him, so clearly establishes such negligence that no other reasonable inference or conclusion can be drawn therefrom. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676; Mikcal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Levy v. Carolina Aluminum Co., 232 N.C. 158, 59 S.E.2d 632; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Bundy v. Powell, supra; Atkins v. White Transportation Co., supra; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227.

The defendants are relying on the case of Sheldon v. Childers, 240 N.C. 449, 82 S.E.2d 396, where the facts in some respects are similar to those in the instant case, but there is a substantial difference between the entire factual situation in that case and the one now before us. In the Sheldon case the plaintiff attempted to pass on a highway having only one lane for traffic in each direction. Plaintiff sounded a warning 400 feet to the rear of defendant's tractor-trailer, which we held not to be in apt time for defendant's driver to have heard it. In the instant case, the plaintiff blew his horn when he was about 200 feet behind the Rogers car and was traveling in the proper lane for passing. Neither is there any evidence on this record to show that the plaintiff was driving at an excessive rate of speed under the conditions and circumstances prevailing immediately preceding the collision. Moreover, in the Sheldon case, the defendant's truck was approaching an intersecting paved highway to the left, which the driver of the defendant's truck attempted to enter at the time the plaintiff attempted to pass the truck. The intersecting highway was visible from the direction in which the plaintiff and the defendant's driver were traveling for a distance of 400 or 500 feet from the intersection. In the instant case, there was no intersecting highway. The plaintiff, under the factual situation revealed by the evidence in this case, was under no legal obligation to anticipate that the driver of the Rogers car might undertake to make a left turn across the left lane of traffic from the right lane of traffic in violation of G.S. § 20-153(a).

While the operator of a motor vehicle is under duty to exercise that care which an ordinarily prudent person would exercise under the same or similar circumstances for his own safety and the safety of others, he is under no duty to anticipate negligence on the part of others, in the absence of anything which gives or should give notice to the contrary. He is entitled to assume, and act on the assumption, that others will exercise ordinary care for their safety. Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Caulder v. Gresham, 224 N.C. 402, 30 S.E.2d 312; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.

In Cox v. Lee, supra [230 N.C. 155, 52 S.E.2d 356], Barnhill, J., later C. J., said: "The driver of an automobile is not required to anticipate negligence on the part of others, and his failure to do so does not constitute an act of negligence."

In the absence of some indication or warning that a motor vehicle traveling in the right lane of a two-lane highway for traffic in the same direction, is preparing to enter the left lane of traffic, the driver of a motor vehicle in the left lane, where the speed limit is 55 miles per hour, is under no obligation to slow down in passing a slow moving vehicle traveling in the right lane.

Even though there was no intersection into or across U. S. Highway 29-70 at the point where the driver of the Rogers car attempted to make a U-turn, in any event, before doing so, he was required by statute to do five things: (1) Before leaving the right lane of traffic, to give the signal required by G.S. § 20-154; (2) to see that such movement could be made in safety; (3) to get into the left lane of traffic before he reached the place on the highway where he intended to turn left into a southbound lane of traffic, as required by G.S. § 20-153(a); (4) to give the signal for the second left turn as required by G.S. § 20-154, and (5) to see that such movement from the left lane could be made in safety.

The defendants further contend that the plaintiff was contributorily negligent because he did not drive his car to the right of the Rogers car where there was ample space to pass either on the paved portion of the highway or on the ten-foot shoulder.

We think the evidence on this record supports the view that the plaintiff was confronted with a sudden emergency. The rule of conduct in an emergency was succinctly stated by Stacy, C. J., in Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, 563, in which he said: "One who is required to act in an emergency is not held by law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; Morgan v. Saunders, 236 N.C. 162, 72 S.E.2d 411; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383.

In our opinion, the questions of negligence and contributory negligence were properly submitted to the jury. In Infantino v. Maher, 366 Pa. 633, 79 A.2d 247; Baggett v. Markel, Inc., La.App., 1953, 65 So.2d 367; Ball v. Home Oil Co., La.App., 1941, 4 So.2d 579; Annotation: Motorist—Signal for Left Turn, 39 A.L.R.2d page 54.

The action of the court below in overruling the defendants' motion for judgment as of nonsuit will be upheld.

Affirmed.