Schloss v. Hallman

122 S.E.2d 513 (1961)

255 N.C. 686

S. A. SCHLOSS, Jr., Mary Jane Silverman, and Florette Schloss Wile, trading as Schloss Poster Advertising Company, a partnership, v. James Clarence HALLMAN and B. L. Beck.

No. 238.

Supreme Court of North Carolina.

November 22, 1961.

*515 Carpenter, Webb & Golding, John A. Mraz, Charlotte, for appellant.

Dockery, Ruff, Perry, Bond & Cobb, Charlotte, for appellees.

DENNY, Justice.

A careful examination of this record reveals that the conclusion of law set out hereinabove is not supported by the findings of fact. Neither is there any evidence to support the finding that the driver of the Beck truck failed to blow his horn before attempting to pass the Pontiac automobile. There is no evidence whatever in the record as to whether Hallman did or did not blow his horn before attempting to pass said automobile.

The evidence, however, does reveal that before the driver of Beck's truck reached the intersection of Andrill Terrace and West Fifth Street, a Pontiac automobile operated by a lady with two small children as passengers, turned from Andrill Terrace into the inside or northernmost lane for eastbound traffic on West Fifth Street. The Pontiac car proceeded east in the inside lane for a distance of approximately 200 feet. When Hallman, traveling in the curb or outside lane at a speed of approximately 30 miles per hour, undertook to pass the Pontiac, the driver of the Pontiac, without giving a signal, pulled into the outer or curb lane only twenty feet ahead of the Beck truck which was traveling faster than the Pontiac.

The evidence further tends to show that the driver of the Beck truck in his effort to avoid a collision with the Pontiac or with another vehicle traveling in the same direction in the left or inner eastbound lane just behind the Beck truck, hit the curb, applied his brakes, lost control of his vehicle which went across the curb, the sidewalk, and down an incline and hit the plaintiffs' billboard. The Pontiac never stopped and the driver thereof is not identified on this record.

The defendant is entitled to a new trial if the evidence is sufficient to carry the case to the jury. Hence, we shall consider the defendant's assignment of error based on his exceptions to the failure of the court below to grant his motion for judgment *516 as of nonsuit interposed at the close of plaintiffs' evidence and renewed at the close of all the evidence.

G.S. § 20-150.1 in pertinent part provides. "The driver of a vehicle may overtake and pass upon the right of another vehicle only under the following conditions: * * * (b) Upon a street or highway with unobstructed pavement of sufficient width which have been marked for two or more lanes of moving vehicles in each direction and are not occupied by parked vehicles."

It is clear that under the circumstances revealed by the record herein, the driver of the defendant's truck was under no duty to sound his horn before passing or attempting to pass a vehicle proceeding in the same direction in another lane, while traveling within a business or residential district. G.S. § 20-149(b). The accident complained of by the plaintiffs occurred in the 1100 block of West Fifth Street in the City of Charlotte. Moreover, there is no evidence of an intersection into which the driver of the Pontiac might have turned to put Beck's driver on notice that the driver of the Pontiac might enter his lane of traffic in order to turn into such intersection. Therefore, the driver of defendant Beck's truck was under no duty to anticipate that the driver of the Pontiac would turn to the right directly in front of him without giving a timely signal and at a time when the Pontiac was only 20 feet ahead of the approaching truck which was traveling approximately 30 miles per hour, which was a greater rate of speed than the Pontiac was traveling.

The driver of a motor vehicle is not bound to anticipate negligence on the part of another driver, in the absence of anything to indicate otherwise. 5A Am. Jur., Automobiles and Highway Traffic, section 204, page 354; Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.

Here, as in the case of Simmons v. Rogers, supra, Hallman was confronted with a sudden emergency. The street was wet, it was raining, and a car driven by a woman with two small children as passengers, suddenly and without warning turned into Hallman's lane of travel only 20 feet ahead of him. "One who is required to act in an emergency is not held by law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562, 563; Ingram v. Smoky Mountain Stages, 225 N.C. 444, 35 S.E.2d 337; Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Powell v. Lloyd, 234 N.C. 481, 67 S.E.2d 664; Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383; Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710; 38 Am.Jur., Negligence, section 41, page 687; 65 C.J.S. Negligence § 17, page 408.

There is no evidence on this record tending to show that the choice made by Hallman in his effort to avoid a collision with the Pontiac was not such choice as a person of ordinary care and prudence would have made under similar circumstances. Accordingly, if Hallman exercised "such care as an ordinarily prudent man would exercise when confronted by a like emergency, he is not liable for an injury which resulted from his conduct, even though another course of conduct would have been more judicious, or even though another course of conduct would have been safer, or might even have avoided the injury, as under such circumstances the injury is regarded as an inevitable accident." 65 C.J.S. Negligence § 17, page 409.

Even so, the plaintiffs contend that irrespective of negligence, they are entitled to recover the relief they seek on their second cause of action as a result of the trespass of the defendant Beck's truck driver upon the land on which their advertising poster was located, which land the plaintiffs are in legal possession by virtue *517 of a lease between themselves and the Piedmont and Northern Railway Company.

In Restatement of the Law of Torts, section 166, page 394, it is said: "Except where the actor is engaged in an extrahazardous activity, an unintentional and non-negligent entry on land in the possession of another or causing a thing or third person to enter the land, does not subject the actor to liability to the possessor, even though the entry causes harm to the possessor or to a thing or third person in whose security the possessor has a legally protected interest." See also Smith v. Pate, 246 N.C. 63, 97 S.E.2d 457. This contention cannot be sustained on this record.

Moreover, a careful consideration of all the evidence adduced in the hearing below leads us to the conclusion that the evidence is insufficient to establish actionable negligence on the part of Hallman, and that the exception to the refusal of the court below to sustain the appellant's motion for judgment as of nonsuit is well taken and will be upheld.

The judgment below is

Reversed.