Primm v. King

106 S.E.2d 223 (1958) 249 N.C. 228

Emma PRIMM
v.
Latha Eugene KING and Hilda Ward.

No. 247.

Supreme Court of North Carolina.

December 10, 1958.

Henry L. Strickland, Charlotte, for plaintiff.

Carswell & Justice, Charlotte, for defendant King.

Helms, Mulliss, McMillan & Johnston, Charlotte, for defendant Ward.

DENNY, Justice.

The defendant King assigns as error the refusal of the court below to grant his motion for judgment as of nonsuit made at the conclusion of all the evidence.

In our opinion, the evidence adduced in the trial below was sufficient to carry the case to the jury as to the defendant King, and we so hold.

Among other things, however, this defendant excepts to and assigns as error the following portion of the charge to the jury: "Incidentally, let me say here, ladies and gentlemen, there being no evidence as to what kind of zone or district this was, that the 55 miles on hour speed law would apply here, and that a speed under 55 miles an hour would not be in violation of the speed law, and one above that would be."

We think this instruction may have misled the jury in light of the fact that the collision involved in this case occurred at an intersection of highways.

G.S. § 20-140 provides: "Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving, * * *."

G.S. § 20-141 further provides: "(a) No person shall drive a vehicle on a highway at a speed greater than is reasonably prudent under the conditions then existing. (b) Except as otherwise provided in this chapter, it shall be unlawful to operate a vehicle in excess of the following speeds: 1. Twenty miles per hour in any business district; 2. Thirty-five miles per hour in any residential district; * * * 4. Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for passenger cars, * * *. (c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, * * * 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."

In light of the provisions of the foregoing statutes it is clear that whether or not a speed of 55 miles an hour is lawful depends upon the circumstances at the time. These statutes provide that a motorist must at all times drive with due caution and circumspection and at a speed and in a manner so as not to endanger or be likely to endanger any person or property. At no time may a motorist lawfully drive at a speed greater than is reasonable and prudent under the conditions then existing.

Conceding that 55 miles per hour was the legal rate of speed on Wilmont Road, the defendant King was entitled to have the jury instructed that notwithstanding the fact that the speed of a vehicle may be lower than 55 miles per hour, "that shall not relieve the driver from the duty to decrease speed when approaching or crossing an intersection * * *, 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."

The fact that the court in its charge stated and applied the common law rule of the prudent man is not sufficient to remedy the failure to explain and apply the applicable statutory provisions. The charge contained no reference to the applicable provisions of G.S. § 20-141(c). Barnes v. Teer, 219 N.C. 823, 15 S.E.2d 379; Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915; Spencer v. Brown, 214 N.C. 114, 198 S.E. 630; Bowen v. Schnibben, 184 N.C. 248, 114 S. E. 170.

For the reasons stated the defendant King is granted a new trial.

Appeal by defendant Ward.

This defendant also assigns as error the refusal of the court below to sustain her motion for judgment as of nonsuit. She is relying upon Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E. 2d 361; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, and similar cases.

In many instances it is a difficult task to determine whether or not a case falls within and should be governed by one line or another of our decisions. We think, however, the evidence in this case is sufficient to take it out of the line of cases cited and relied upon by this defendant.

The plaintiff is entitled to have the evidence on the entire record considered in the light most favorable to her and she is likewise entitled to the benefit of every reasonable inference to be drawn therefrom. Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Thomas v. Thurston Motor Lines, 230 N. C. 122, 52 S.E.2d 377; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251.

As we interpret the testimony of the defendant Ward, she admits that she saw the top of her co-defendant's car for 150 feet as it approached but before it entered the intersection. She further testified that King was not driving over 10 miles per hour, and she never fixed her own speed at less than 40 or 45 miles per hour, while the plaintiff's testimony fixed her speed at 65 miles per hour before she took her foot off the accelerator when she was about 250 feet from the intersection. Moreover, the plaintiff testified, "I saw the King car coming across the intersection when the car I was riding in was about 250 feet from the intersection."

The defendant Ward does not contend that she made any effort to slow down other than to remove her foot from the accelerator until she was within 50 or 60 feet of the intersection. There is some evidence tending to show that after the accident the defendant Ward stated she did not apply her brakes until she was within 10 or 15 feet of the intersection. On the other hand, the testimony of one of her witnesses tends to show that skid marks led back from the Ward car from the point of impact for approximately 100 feet.

In Blalock v. Hart, 239 N.C. 475, 80 S.E. 2d 373, 377, Johnson, J., in speaking for the Court, said: "* * * the driver on a favored highway protected by a statutory stop sign, G.S. § 20-158, does not have the absolute right of way in the sense he is not bound to exercise care toward traffic approaching on an intersecting unfavored highway. It is his duty, notwithstanding his favored position, to observe ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon him in approaching and traversing such an intersection (1) to drive at a speed no greater than is reasonable and prudent under the conditions then existing, (2) to keep his motor vehicle under control, (3) to keep a reasonably careful lookout, and (4) to take such action as an ordinarily prudent person would take in avoiding collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered or should have been discovered."

In the light of the facts disclosed on this record, we conclude that the evidence against this defendant is sufficient to carry the case to the jury on the theory of concurrent negligence of both the defendants. Blalock v. Hart, supra, and cited cases.

The defendant Ward also assigns as error the following portions of the charge to the jury: "Now, there is also in the law, ladies and gentlemen, a provision to the effect that where two vehicles approach an intersection at the same time, both of them observing the law, then the person that gets in the right of way first has the right of way, and it is up to the other one to yield to him. * * *

"On the other hand, a person, regardless of previous conditions, a dominant highway being on the left or right, etc., a person who first enters an intersection then has the right to proceed through that intersection without interference, and to that extent he has the right of way."

The above instructions are obviously erroneous. The law with respect to entering an intersection under the circumstances pointed out in the first portion of the charge, to which this defendant excepted, is set forth in G.S. § 20-155 as follows: "(a) When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in § 20-156 and except where the vehicle on the right is required to stop by a sign erected pursuant to the provisions of § 20-158 * * *."

Likewise, as to the second portion of the charge to which this defendant excepted, G.S. § 20-158 provides: "(a) The State Highway Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles to come to full stop before entering or crossing such designated highway, and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto and yield the right-of-way to vehicles operating on the designated main traveled or through highway and approaching said intersection. No failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence. * * *"

Therefore, a motorist traveling on a servient highway on which a stop sign has been erected at an intersection with a dominant highway may not lawfully enter such intersection until he has stopped and observed the traffic on the dominant highway and determined in the exercise of due care that he may enter such intersection with reasonable assurance of safety to himself and others. The failure of a driver, however, on a servient highway, to stop before entering an intersection with a dominant highway is not to be considered contributory negligence per se but the facts relating to such failure to stop may be considered with the others facts in the case in determining whether or not under all the facts and circumstances involved such driver was guilty of negligence or contributory negligence. Badders v. Lassiter, 240 N.C. 413, 82 S.E. 2d 357; Edwards v. Vaughn, supra; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Matheny v. Central Motor Lines, supra.

Ordinarily, when erroneous instructions are given in a charge, such error will not be cured although the court may have given the correct instructions in other parts thereof. It cannot be presumed that the jury was able to distinguish at which time the court was laying down the correct rule. Hartley v. Smith, 239 N.C. 170, 79 S.E.2d 767; Godwin v. Johnson Cotton Co., 238 N.C. 627, 78 S.E.2d 772; State v. Ellerbe, 223 N.C. 770, 28 S.E.2d 519; State v. Floyd, 220 N.C. 530, 17 S.E. 2d 658; Rogers v. Southeastern Construction Co., 214 N.C. 269, 199 S.E. 41.

There are other assignments of error which are not without merit; even so, we deem it unnecessary to discuss them since there must be a new trial and the additional errors complained of may not recur thereon.

As to the defendant King: New trial.

As to the defendant Ward: New trial.

PARKER, J., not sitting.