Cline v. Atwood

147 S.E.2d 885 (1966) 267 N.C. 182

Calvin C. CLINE
v.
Sidney Eugene ATWOOD and Buford B. Scott.

No. 456.

Supreme Court of North Carolina.

May 4, 1966.

Elledge & Mast, Winston-Salem, for plaintiff, appellee.

Deal, Hutchins & Minor, Winston-Salem, for defendant Scott, appellant.

EMERY B. DENNY, Emergency Justice.

This appellant assigns as error the refusal of the court below to sustain his motion for judgment as of nonsuit made at the close of the plaintiff's evidence and renewed at the close of all the evidence.

The plaintiff alleges in Paragraph 3 of his complaint that as the defendant "Sidney Eugene Atwood operated his 1955 Ford truck in an easterly direction toward the approaching Ford, he pulled his truck over into the lefthand or northern lane of traffic. As the two vehicles approached each other in the northern lane, both the defendant, Buford Scott and the defendant, Atwood, suddenly cut their vehicles toward the southern lane of the highway, thereby causing a violent collision in which both vehicles were totally destroyed and in which the plaintiff Calvin C. Cline was seriously injured * * *."

In Paragraph 5 of the complaint the plaintiff alleges, among other things, that Atwood "was operating his truck while he was under the influence of intoxicating liquor to such an extent that his physical and mental faculties had been appreciably impaired, in violation of GS 20-138; that he was driving upon the highway without keeping a proper lookout * * * and without keeping the vehicle which he was driving under proper control; he failed to turn from the path of the approaching vehicle until it was impossible to avoid a collision * * *."

Among the plaintiff's allegations with respect to the negligence of defendant Scott, it is alleged that Scott "failed to turn his automobile from the main travelled section of the highway onto the wide shoulder and driveways which were quite ample and safe when he knew or should have known that such failure would bring injury to his passenger, the plaintiff * * *."

The plaintiff offered in evidence the adverse examination of the defendant Scott, which examination was taken before the trial. When this adverse examination of Scott was introduced in evidence, the plaintiff made him his witness and represented that he was worthy of belief. Powell v. Cross, 263 N.C. 764, 140 S.E.2d 393; State v. Tilley, 239 N.C. 245, 79 S.E.2d 473. A party does not make his adversary his witness by taking his adverse examination, unless he offers the adverse examination, or part of it, in evidence at the trial. State v. Tilley, supra. Furthermore, when a plaintiff makes a party in the litigation his own witness, he is not allowed to impeach him by attacking his credibility, but retains the right to contradict him by the testimony of other witnesses whose testimony may be inconsistent with his. Helms v. Green, 105 N.C. 251, 11 S.E. 470; State v. Tilley, supra.

What does the testimony of the defendant Scott tend to show on his adverse examination? The evidence tends to show that the collision occurred on a straight, level portion of Highway 67 and that the defendants could see the respective vehicles involved approaching each other for about one-half mile; that defendant Scott was traveling west in the northern lane of the 22-foot paved highway at a speed of about 50 or 55 miles per hour; that the defendant Atwood was traveling eastwardly in the southern lane of said highway (at a speed of 30-35 miles per hour according to Atwood's testimony); that when Atwood's truck was about 100 feet from defendant Scott's car, Atwood turned his vehicle into Atwood's left lane in front of Scott's car. Scott further testified that when Atwood turned his truck to Atwood's left he thought he (Atwood) was turning into the Esso station. Scott further testified that when he saw Atwood's truck approaching him in his, Scott's, lane of travel, less than 100 feet away, he turned his car to the left in an effort to avoid a head-on collision; that not more than half of Scott's car had crossed the center line to Scott's left when Atwood's truck ran into the Scott automobile on its right-hand side near the windshield and the right door.

Atwood's adverse examination was also introduced in evidence by the plaintiff, and Atwood testified that he recalled nothing that occurred after he reached a point about 250 feet from Scott's car, and gave as his reason for not knowing what happened, "because I was looking on my side of the road." Therefore, Scott's evidence that Atwood crossed into the northern lane in front of Scott's car when the vehicles were only about 100 feet apart is uncontradicted. Moreover, Atwood, just prior to testifying with respect to the speed of the Scott car, had testified on cross-examination that "(I)t's hard to tell the speed of a car approaching me, too. I couldn't tell the speed, but I could tell he was going a lot faster than I was."

In the case of Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, Butner was traveling in a southerly direction on the Bethania-Rural Hall highway and the Spease truck was traveling northward. The two motor vehicles were approaching each other at night on a straight, level stretch of road with the headlights visible for a distance of three-quarters of a mile. They collided at the entrance of a side road heading westward to Tobaccoville. When the Butner car approached the "mouth" of this side road, which was approximately 45 or 50 feet wide, and when the two vehicles were about 40 feet apart, the Spease truck suddenly turned to its left to enter the side road at its southern edge. The front of the Butner car struck the right side of the truck "just in front of the rear fender," knocked it over a fill and caused it to turn over several times. Spease testified the Butner car was traveling 70 to 75 miles per hour. Stacy, C. J., speaking for the Court, said:

"* * * Indeed, the only suggestion of negligence on the part of the driver of the southbound car is the speed at which he was going. The evidence of the defendant Spease in regard to this may be taken with some allowance, because he frankly says that he misjudged the speed of the Butner car; that it is hard to estimate the speed of a car at night when it is coming towards you, and that he was practically in the act of turning when he first saw the car. Nevertheless, conceding the speed of the Butner car to be in excess of 45 miles an hour, and therefore prima facie unlawful, it is manifest that its speed would have resulted in no injury but for the ``extraordinarily negligent' act of the defendant Spease—in the language of the Restatement of Torts, Sec. 447. Powers v. S. Sternberg [& Co.], supra (213 N.C. 41, 195 S.E. 88). Hence, the proximate cause of the collision must be attributed to the gross and palpable negligence of the driver of the northbound vehicle. Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Hinnant v. [Atlantic Coast Line] R. R., supra, (202 N.C. 489, 163 S.E. 555); Herman v. [Atlantic C. L.] R. R., supra (197 N.C. 718, 150 S.E. 361); Burke v. Coach Co., 198 N.C. 8, 150 S.E. 636; Lavergne v. Pedarre, La.App., 165 So. 17."

In Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19, D. Capps was driving his truck in a westerly direction on a rural paved road at 45 miles per hour. The defendant Smith was driving his Plymouth automobile in an easterly direction at a speed of 60 miles per hour. Capps lost control of his truck and ran off the pavement on the right shoulder of the road, and in getting back on the road "angled across the pavement in front of defendant's car." When the truck cut back on the highway in front of defendant, the defendant was 100 feet from the truck. This Court in a per curiam opinion said, among other things: "If two vehicles are 100 feet apart and one of them is traveling forty-five miles per hour, and the other sixty miles per hour, they must, of course, necessarily meet in less than three seconds —as a matter of fact, in approximately 0.65 second. Even if one of the vehicles were at a dead stop, the vehicle traveling sixty miles per hour would traverse the distance of 100 feet in approximately 1.14 seconds. * * * Considering all the evidence in the light most favorable to plaintiff, the motion for nonsuit was properly sustained."

Clearly the defendant Atwood created the sudden emergency with which the defendant Scott was faced. The plaintiff alleges and contends that Scott was negligent in that he did not drive his car entirely off the traveled portion of the highway onto the shoulder and driveways to his right and thus avoid the collision. Under the facts in this case, in our opinion the negligence of the defendant Atwood was the sole proximate cause of plaintiff's injury, and we so hold. Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, supra; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111; Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Capps v. Smith, supra.

The factual situation in the case at bar is distinguishable from those in the cases of Davis v. Jessup, 257 N.C. 215, 125 S.E.2d 440, and Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R. 2d 939.

The defendant Scott's motion for judgment as of nonsuit should have been sustained.

Reversed.

MOORE, J., not sitting.