Lowe v. Futrell

157 S.E.2d 92 (1967) 271 N.C. 550

Jessie James LOWE
v.
Claude FUTRELL, trading as Futrell Farm Equipment Company, and Perry Wilson Draper.

No. 193.

Supreme Court of North Carolina.

October 11, 1967.

Jones, Jones & Jones, Ahoskie, for plaintiff appellant.

V. D. Strickland, Rich Square, for defendant appellees.

LAKE, Justice.

Taking the plaintiff's evidence to be true, resolving all conflicts therein in his favor, and considering it in the light most favorable to him, together with all inferences in his favor which may reasonably be drawn therefrom, it is sufficient to show that the defendant Draper, driving the automobile of his employer in the course of his employment, overtook the plaintiff's bicycle and attempted to pass it without blowing the horn or otherwise giving warning of his approach. However, it also leads inescapably to the conclusion that the adult bicyclist, familiar with the area and with the highway, after riding for an undisclosed distance eastwardly on the right-hand edge of the pavement, at three o'clock in the afternoon, turned his bicycle to his left and started toward the center of the road, with intent to cross it, without ever looking to his rear to see if the movement could be made in safety, the automobile driven by Draper being then practically upon him and in plain view.

Interpreting the plaintiff's evidence in the light most favorable to him, we assume that the point of collision was not a residence district, as that term is defined in the Motor Vehicle Law, and that, consequently, G.S. § 20-149(b) applies. As amended in 1959, this statute provides:

"The driver of an overtaking motor vehicle not within a business or residence district, as herein defined, shall give audible warning with his horn or other warning device before passing or attempting to pass a vehicle proceeding in the same direction, but his failure to do so shall not constitute negligence or contributory negligence per se in any civil action; although the same may be considered with the other facts in the case in determining whether the driver of the overtaking vehicle was guilty of negligence or contributory negligence."

In Cowan v. Murrows Transfer Co. and Carr v. Murrows Transfer Co., 262 N.C. 550, 138 S.E.2d 228, this Court, speaking through Moore, J., said:

"The 1959 amendment of G.S. § 20-149(b) does not mean that an overtaking and passing motorist is relieved of all duty to give audible warning; it simply means that a failure to give such warning may or may not constitute a want of due care, depending upon the circumstances of the particular case."

If, on the other hand, it be assumed that the point of collision was a residence district, as defined in the Motor Vehicle Law, the foregoing statute would impose upon the defendant Draper no duty to blow his horn, but it would not relieve him of a duty imposed upon him by the common law. The common law imposes upon him the duty to use reasonable care to avoid injury to other persons upon the highway and, for that purpose, to blow his horn if, under like circumstances and conditions, a reasonably prudent driver would have done so. The provision of this statute with reference to a vehicle within a business or residence district was not intended to forbid the overtaking motorist to sound his horn, or to absolve him of the duty to do so, where the circumstances are such that a reasonable man in the position of the overtaking motorist could foresee risk of injury to the person or property of the occupant of the forward vehicle if he undertakes to pass the forward vehicle without such warning. In the absence of a statutory requirement, "[a] motorist is required, when reasonably necessary, to blow his horn to give warning to travelers ahead." Guthrie v. Gocking, 217 N.C. 476, 8 S.E.2d 607. See also, 8 Am Jur 2d, Automobiles, §§ 779, 780.

Evidence that motorist overtook and, without blowing his horn, attempted to pass a bicyclist, who had not looked back and who had given no other indication of awareness of the overtaking vehicle, is evidence of negligence sufficient to carry that issue to the jury, whether the attempt to pass occurred in a residence district or in open country. See Webb v. Felton, 266 N. C. 707, 147 S.E.2d 219. See also, 60 C.J.S. Motor Vehicles § 288. Under the circumstances disclosed by the plaintiff's evidence, interpreted in the light most favorable to him, there is in the present record sufficient evidence of negligence by the defendant Draper, imputed to his employer, Futrell, which was a proximate cause of the injury to the plaintiff, to withstand the motion for judgment of nonsuit so far as the issue of the defendants' negligence is concerned.

However, a nonsuit may properly be granted on the ground of the plaintiff's contributory negligence where his own evidence reasonably permits no other inference. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Cowan v. Murrows Transfer Co. and Carr v. Murrows Transfer Co., supra; Sheldon v. Childers, 240 N.C. 449, 82 S.E.2d 396; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730.

G.S. § 20-154(a) provides, "The driver of any vehicle upon a highway before * * * turning from a direct line shall first see that such movement can be made in safety." In Cowan v. Murrows Transfer Co. and Carr v. Murrows Transfer Co., supra, this Court said:

"A violation of this provision is negligence per se. Mitchell v. White, 256 N.C. 437, 124 S.E.2d 137; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538. We held in Tallent v. Talbert, 249 N.C. 149, 105 S.E.2d 426, that failure to look during the last 90 feet before turning constituted contributory negligence as a matter of law. See also Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Gasperson v. Rice, 240 N.C. 660, 83 S.E.2d 665.

By Chapter 768 of the Session Laws of 1965, subsection (b) of G.S. § 20-154, which deals specifically with the signals to be given before turning or stopping, was amended by changing the period at the end thereof to a semi-colon and adding, "and provided further that the violation of this section shall not constitute negligence per se." (Emphasis added) We need not now determine whether this proviso was intended to apply to subsection (a), for the collision here involved occurred 24 July 1964, prior to the amendment.

A bicycle is a vehicle and its rider is a driver within the meaning of the Motor Vehicle Law. G.S. § 20-38(38). Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727.

The plaintiff's evidence leads only to the inference that, without looking behind him to see that the move could be made in safety, the plaintiff, an adult, turned his bicycle to the left and into the path of the overtaking vehicle, thereby contributing to the collision and to his own injury. For this reason, the motion for judgment of nonsuit was properly allowed.

Affirmed.