Sidden v. Talbert

208 S.E.2d 872 (1974)

23 N.C. App. 300

Jerry Dean SIDDEN v. Henry Taylor TALBERT By his Guardian Ad Litem, Lois S. Talbert, and Richard Taylor Talbert.

No. 7423DC664.

Court of Appeals of North Carolina.

October 16, 1974.

Certiorari Denied December 3, 1974.

*873 Franklin D. Smith, Elkin, for plaintiff-appellee.

Finger & Park by Daniel J. Park, Elkin, for defendants-appellants.

Certiorari Denied by Supreme Court December 3, 1974.

BALEY, Judge.

Defendants assign as error the failure of the trial court to grant their motions for a directed verdict.

*874 Upon defendants' motion for directed verdict "[a]ll the evidence which tends to support plaintiff's claim must be taken as true and considered in its light most favorable to plaintiff, giving [him] the benefit of every reasonable inference which legitimately may be drawn therefrom. . . . Contradictions, conflicts and inconsistencies are resolved in plaintiff's favor. (Citations omitted.)" Bowen v. Gardner, 275 N.C. 363, 365-366, 168 S.E.2d 47, 49. Miller v. Enzor, 17 N.C.App. 510, 195 S.E.2d 86, cert. denied, 283 N.C. 393, 196 S.E.2d 296.

Applying this standard it seems clear that this is a case for the jury. From the evidence of plaintiff, the vehicle of defendants was in an area marked by a traffic island indentation and designated for traffic making a left turn, and defendant Henry Taylor Talbert was giving a left turn signal immediately before he turned right and collided with plaintiff. The testimony of the parties was in direct conflict on this point. Credibility of witnesses is for the jury. Cutts v. Casey, 278 N.C. 390, 421, 180 S.E.2d 297, 314. The motions for directed verdict were properly overruled.

Defendants also assign as error the court's instructions to the jury, specifically the portions dealing with G.S. § 20-150.1 and G.S. § 20-150(e) as these statutes bear on the issue of plaintiff's own negligence. G.S. § 20-150(e) states: "The driver of a vehicle shall not overtake and pass another on any portion of the highway which is marked by signs or markers placed by the Board of Transportation stating or clearly indicating that passing should not be attempted." Passing on the right is permitted only under certain conditions, among them "[w]hen the vehicle overtaken is in a lane designated for left turns. . . ." G.S. § 20-150.1(1).

We have carefully examined the charge of the court with respect to these statutes and the evidence in this case and find it to be proper in all respects. The evidence concerning the construction of the road with its widened approach to the intersection and the presence of traffic islands with indentations for traffic turning left at the intersection was undisputed. If the vehicle of the defendant was found by the jury to have been in the left lane at the traffic island indentation immediately prior to the collision, he would clearly have been "in a lane designated for left turns." Defendant relies upon Teachey v. Woolard, 16 N.C. App. 249, 191 S.E.2d 903, which is factually distinguishable. In Teachey there was no evidence that the overtaken vehicles were in lanes designated for left turns.

The charge of the court that the "Do not pass" sign on the right at the approach to the intersection was to instruct vehicles not to make a passing movement to the left upon entering the intersection, and did not apply to a vehicle continuing down the right lane past another vehicle which was located in the lane designated for making a left turn, was entirely proper and is approved. The purpose of the sign and the statute authorizing it is to prevent collisions with oncoming traffic or, as in this case, traffic islands. Under the interpretation urged by defendant, when a vehicle is in a lane designated for left turns and a sign says "Do not pass," no following traffic may proceed through the intersection until the lead vehicle has actually turned. We do not consider such a result to be envisioned by the legislature and are in accord with the interpretation placed upon the statute by the trial court.

Defendants objected to the introduction of photographs showing injuries to the plaintiff. Concededly such photographs are not admissible as substantive evidence, 1 Stansbury, N.C. Evidence, (Brandis rev.), § 34, but they are admissible for the purpose of illustrating testimony and were so used by the plaintiff when he testified. In the absence of a timely request, failure to instruct that a photograph is admitted for illustrative purposes only is not error. State v. Cade, 215 N.C. 393, 2 S.E.2d 7.

Defendants have presented thirty-two assignments of error most of which concern *875 admissibility of evidence and the charge of the court. We have carefully examined all the remaining assignments and find them to be without merit.

The defendants have had a fair trial. The jury has made its decision.

No error.

BRITT and HEDRICK, JJ., concur.