Jernigan v. Jernigan

72 S.E.2d 912 (1952)

236 N.C. 430

JERNIGAN v. JERNIGAN et al.

No. 242.

Supreme Court of North Carolina.

October 29, 1952.

*913 J. R. Barefoot, Benson, and E. R. Temple, Smithfield, for plaintiff, appellant.

A. M. Noble, Smithfield, for defendant, Colonel Jernigan, appellee.

ERVIN, Justice.

The common law disability of the wife to sue the husband at law has been removed by statute. In consequence, a married woman has a right of action against her husband for a tort causing personal injury. King v. Gates, 231 N.C. 537, 57 S.E.2d 765; Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523; York v. York, 212 N.C. 695, 194 S.E. 486; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206; Id., 181 N.C. 66, 106 S.E. 149; Graves v. Howard, 159 N.C. 594, 75 S.E. 998, Ann.Cas.1914C, 565.

This being true, the appeal raises the solitary question whether the presiding judge erred in holding as a matter of law that the evidence introduced by the plaintiff at the trial was insufficient to establish actionable negligence on the part of her husband, the defendant Jernigan.

Jernigan contends that this question must be answered in the negative. He asserts *914 initially that this is so because the testimony at the trial did not disclose any negligence whatever on his part. He concedes that under subsection (b) 4 of G.S. § 20-141 the maximum permissible speed for a passenger car at the place described in the pleadings was fifty-five miles per hour, and that the witnesses testified that he drove his automobile at that place at a speed of not less than sixty miles an hour. He lays hold however, on the celebrated declaration of that great jurist, the late Chief Justice Stacy, in Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, 89, that "There are a few physical facts which speak louder than some of the witnesses", and argues that the physical facts in the instant case demonstrate the incredibility of the testimony of the witnesses that his speed exceeded the maximum permissible limit. This argument is untenable. It flies in the face of the general rule that what the physical facts say when they speak is ordinarily a matter for the determination of the jury.

Jernigan insists secondarily that the evidence at the trial compelled the single conclusion that there was no causal connection between any act or omission of his and the collision, and that the compulsory nonsuit was proper on that ground even if the evidence did suffice to show that he was driving at an unlawful speed.

His counsel advances these arguments to support this position: That Jernigan and Capps were traveling in opposite directions on State Highway No. 40, each being on his own right-hand half of the highway; that Jernigan rightly assumed, and rightly acted on the assumption, that Capps would observe the precautions prescribed by G.S. § 20-154 with respect to seeing whether such movement could be made in safety and with respect to signaling his intended action before he undertook to make a left turn on the highway; that Capps violated this statute by suddenly making an unsignaled left turn across Jernigan's path when the two automobiles were so close to each other that the collision could not be avoided by any act on the part of Jernigan; that the collision would have happened regardless of whether Jernigan's automobile had been going faster or slower; and that consequently the sole proximate cause of the collision and the resultant injuries to the plaintiff was the improvident left turn made by Capps.

The secondary position of Jernigan is valid in law if, and only if, it is well grounded in fact. Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808. Hence, we are confronted at this point by the subsidiary inquiry whether the evidence at the trial compelled the single conclusion that the collision occurred in the manner depicted by the able counsel who represents Jernigan.

A motorist proceeding along the highway ordinarily has the right to assume, and to act on the assumption, that the driver of a vehicle coming from the opposite direction will comply with statutory requirements before making a left turn across his path. Webb v. Hutchins, 228 N.C. 1, 44 S.E.2d 350; Brown v. Southern Paper Products Co., Inc., 222 N. C. 626, 24 S.E.2d 334; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607. The motorist is not permitted by law to indulge in this assumption, however, after he sees or by the exercise of due care ought to see from the conduct of the approaching driver that the assumption is unwarranted. Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593; Brown v. Southern Paper Products Co., Inc., supra; Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707.

We shall take it for granted without so adjudging for the purpose of this appeal that Capps violated G.S. § 20-154 by undertaking to make a left turn from the highway into the unpaved road across the path of the oncoming automobile driven by Jernigan without first seeing that such movement could be made in safety and without first giving Jernigan any signal of his intention to make such movement.

When the evidence at the trial is interpreted in the light most favorable to plaintiff, it justifies these inferences: That Jernigan drove his automobile on his right *915 side of the highway in a place outside a business or residence district at a speed of not less than sixty miles an hour; that Jernigan saw Capps undertake to make an unsignaled left turn across his path toward the entrance to the unpaved road when the two automobiles were separated by a space of 300 feet; that Jernigan did not thereafter have the right to assume or to act on the assumption that Capps would not make the left turn which he actually saw him making; that Jernigan could have avoided any collision with the Capps car after he saw it making the left turn by reducing his speed, or by stopping his automobile, or by driving onto the left side of the highway to the rear of the turning Capps car; that instead of taking one of these courses of action, Jernigan proceeded straight ahead on his right side of the highway at unabated speed until he was in virtual contact with the Capps car in the vain hope that his excessive speed would enable him to clear the juncture of the highway and unpaved road in front of the Capps car; that Jernigan then swerved to his right, left the highway, and entered the dirt shoulder lying north of the pavement and south of the mouth of the unpaved road in a desperate effort to extricate his automobile and its occupants from the imminent peril of collision with the turning Capps car; and that this desperate effort on the part of Jernigan proved unsuccessful when the left-hand front of his automobile struck the left-hand front of the Capps car, whose front wheels had also entered the dirt shoulder lying north of the pavement and south of the mouth of the unpaved road.

It thus appears that the evidence at the trial did not compel the single conclusion that the sole proximate cause of the collision was the improvident left turn made by Capps. The evidence was ample to support the quite different conclusion that Jernigan drove his automobile at an unlawful speed and failed to keep it under reasonable control and that his negligence in these respects either of itself or in combination with concurrent negligence on the part of Capps, proximately caused the collision and the resultant injuries to the plaintiff.

It follows that the presiding judge erred in allowing Jernigan's motion for a compulsory nonsuit, and that such nonsuit must be

Reversed.