Wooten v. Russell

122 S.E.2d 603 (1961)

255 N.C. 699

Simeon Augustus WOOTEN, Sr. v. Joseph L. RUSSELL. Simeon Augustus WOOTEN, Jr., by his Next Friend, Jennie Lane Wooten, v. Joseph L. RUSSELL.

No. 235.

Supreme Court of North Carolina.

November 22, 1961.

*604 Ruark, Young, Moore & Henderson, Raleigh, and Moore & Moore, Wilson, for plaintiff appellants.

Lucas, Rand & Rose, Wilson, and Critcher & Gurganus, Williamston, for defendant appellee.

RODMAN, Justice.

The first question for determination is: Should defendant's motion for nonsuit have been allowed? Young Wooten testified that defendant did not stop at the intersection as commanded by the stop signs. While a failure to stop and yield the right of way to traffic on the dominant highway is not negligence per se, G.S. § 20-158, it is evidence of negligence, State v. Sealy, 253 N.C. 802, 117 S.E.2d 793; Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658; and, when the proximate cause of injury, is sufficient to support a verdict for plaintiff.

Defendant in his brief does not contend there was no evidence of his negligence. He insists the nonsuit was properly allowed because plaintiffs' evidence establishes his negligence contributing to the collision and the resulting damages. If so, it must be established by evidence from which only that inference can be drawn. If differing and conflicting inferences can be drawn, the jury must do so.

The law applicable to motorists on dominant and servient highways when approaching an intersection has been stated in numerous cases. It is said in Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450, 452: "The rule in this State is that the operator of an automobile traveling upon a main or through highway and approaching a crossover or an intersection is under no duty to anticipate that the operator of an automobile approaching such intersection will fail to stop or yield to traffic on the main or through highway and, in the absence of anything which gives or should give notice of the contrary, he will be entitled to assume and to act upon the assumption, even to the last minute, that the operator of the automobile on the intersecting highways or cross-over will stop before entering such highway."

It is said in Jordan v. Blackwelder, supra [250 N.C. 189, 108 S.E.2d 432]: "This latter statute (G.S. § 20-158) not only requires the driver on the servient highway or street to stop, but such driver is further required, after stopping, to exercise due care to see that he may enter or cross the dominant highway or street in safety before entering thereon." Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Jackson v. McCoury, 247 N.C. 502, 101 S.E.2d 377; Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305; Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514; Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683.

Plaintiff's evidence fixes his speed at "about 35" m. p. h. It is not suggested that such a speed is unreasonable or prohibited. Plaintiff testified: "When I got about a half a block from the intersection of Vance Street and Bynum Street I saw the lights of the vehicle approaching so I took my foot off of the gas, instinctively, *605 kind of, and as I approached the intersection he appeared to be stopping. He appeared to be stopping but he didn't stop and came on up there and I didn't have time to hit the brakes at all so I turned to the right to try to avoid the collision but as I turned, I turned kind of into the other street and as I turned in there I was struck on the left fender by Mr. Russell's car." Plaintiff and defendant each knew of the stop signs on Bynum Street.

Defendant testified that he was traveling about 10 m. p. h. If that be true and plaintiff's estimate of his speed and the approximate distance of the two automobiles from the intersection when first visible to each other is accurate, it is apparent that they would reach the intersection at approximately the same instant.

Plaintiff also said: "I saw the lights of the Russell car when I was about a half a block away from the intersection. I don't know how far I was when I saw the car. The Russell car was approaching the intersection but I couldn't see too far back up in the intersection. The Russell car was about a fourth of a block away from the intersection. I guess I was about a half a block away, yes sir. The Russell car appeared to be about a fourth of a block away from the intersection of Bynum Street when I first saw it. There is a house that is located in that intersection corner on the southeast that is very near the street line. I never did put on brakes. . . . I saw it coming out into the street and I knew I didn't have time to hit the brakes then. I saw it come out into the street. I didn't really have time to think exactly what I was going to do so I just turned right the first chance, the first time I saw there was going to be a collision."

True, defendant's version differs from that of plaintiff. He testified that he stopped at the intersection, looked down Vance Street, and seeing no traffic approaching, proceeded into the intersection, and when half or more than half way across the intersection, was struck by plaintiff, who was traveling at a speed estimated to be 55 m. p. h. But this differing picture painted by defendant requires a factual determination by a jury.

The court erred in allowing defendant's motion for nonsuit. It ruled correctly in refusing to nonsuit defendant's counterclaim.

Plaintiffs assign as error portions of the charge, but as they are entitled to a new trial on the issues raised by the pleadings, it is not necessary to discuss the asserted errors not apt to occur in another trial.

New trial.