State v. HillAnnotate this Case
62 S.E.2d 532 (1950)
233 N.C. 61
STATE v. HILL.
Supreme Court of North Carolina.
December 13, 1950.
*533 Harry McMullan, Atty. Gen., and Hughes J. Rhodes, Asst. Atty. Gen., for the State.
John G. Prevette, Asheboro, for the defendant, appellant.
The appeal presents this question for decision: Was the testimony for the State sufficient to carry the case to the jury and support its verdict that the defendant was guilty of criminal negligence proximately resulting in the death of the decedent? See: State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Stansell, 203 N.C. 69, 164 S.E. 580.
It is manifest that there is no basis for any conclusion that the accused was negligent in the premises unless the State's evidence affords a factual foundation for the contention of the prosecution that it was his legal duty to yield the right of way at the intersection to the Chevrolet car in which the deceased was riding.
As applied to vehicular travel at intersections of highways and streets, the term "right of way" means "the right of a vehicle to proceed uninterruptedly in a lawful manner in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path." 60 C.J.S., Motor Vehicles, § 362.
Inasmuch as vehicular traffic at the intersection of the streets involved in this action was not controlled by stop signs, traffic signals, or similar means, the question as to who had the right of way at such intersection at the time of the fatal accident must be determined by applying to the testimony rules of conduct established by law for the government of motorists approaching or entering highway or street intersections. The relevant rules are as follows:
*534 1. "When two vehicles approach or enter an intersection * * * at approximately the same time," the driver on the right has the right of way, and the driver on the left must yield him that right. G.S. § 20-155(a).
2. This statutory rule does not apply, however, unless the two vehicles approach or enter the intersection at approximately the same time. When that condition does not exist, the vehicle first reaching and entering the intersection has the right of way over a vehicle subsequently reaching it, irrespective of their directions of travel; and it is the duty of the driver of the latter vehicle to delay his progress so as to allow the first arrival to pass in safety. Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E.2d 642; Yellow Cab Co. v. Sanders, 223 N.C. 626, 27 S.E.2d 631; Piner v. Richter, 202 N.C. 573, 163 S.E. 561.
3. Two motor vehicles approach or enter an intersection at approximately the same time within the purview of these rules whenever their respective distances from the intersection, their relative speeds, and the other attendant circumstances show that the driver of the vehicle on the left should reasonably apprehend that there is danger of collision unless he delays his progress until the vehicle on the right has passed. Yellow Cab Co. v. Sanders, supra; Essig v. Cheves, 75 Ga.App. 870, 44 S.E.2d 712; Kirchoff v. Van Scoy, 301 Ill.App. 366, 22 N.E.2d 966; Henderson v. Johnson, 300 Ill.App. 613, 21 N.E.2d 42; Gold v. Portland Lumber Co., 137 Me. 143, 16 A.2d 111; Warner v. Markoe, 171 Md. 351, 189 A. 260; Lee v. City Brewing Co., 279 N.Y. 380, 18 N.E.2d 628; Ries v. Cheyenne Cab & Transfer Co., 53 Wyo. 104, 79 P.2d 468. A corollary of this proposition may be stated conversely in these words: When the driver of a motor vehicle on the left comes to an intersection and finds no one approaching it on the other street within such distance as reasonably to indicate danger of collision, he is under no obligation to stop or wait, but may proceed to use such intersection as a matter of right. Kallansrud v. Libbey, 234 Iowa 700, 13 N.W.2d 684; State v. Brighi, 232 Iowa 1087, 7 N.W.2d 9.
4. A driver having the right of way may act upon the assumption in the absence of notice to the contrary that the other motorist will recognize his right of way and grant him a free passage over the intersection. Yellow Cab. Co. v. Sanders, supra.
The task of applying these rules to the evidence must now be performed.
When the defendant's automobile came to the southern edge of the intersection, the distance between it and the northern edge of the intersection was only 23 feet whereas the distance between the eastern edge of the intersection and the approaching Chevrolet car was more than 125 feet. The Chevrolet car was traveling at a speed of only 15 or 20 miles an hour. In view of the distances to be traveled by the two vehicles, the speed of the Chevrolet car, and the other circumstances then existing, it reasonably appeared that the defendant's automobile could pass northward over the intersection without danger of collision with the Chevrolet car. The defendant entered the intersection under these conditions an appreciable length of time ahead of the Chevrolet car, and proceeded northward upon the intersection without any notice that the driver of the Chevrolet car did not intend to grant him free passage. After the defendant's automobile had traveled at least half-way across the intersection, the Chevrolet car entered the intersection, and struck the right side of the defendant's automobile with its front.
These things being true, the two vehicles did not approach or enter the intersection at approximately the same time, and the Chevrolet car did not have the right of way at that place. Such right belonged to the defendant, who reached and entered the intersection an appreciable length of time ahead of the Chevrolet car. Crone v. Fisher, supra; Enz v. Johns, 112 Cal. App. 1, 296 P. 115; Loffer v. Witte, 71 S.D. 626, 28 N.W.2d 698.
*535 It necessarily follows that there is no factual foundation in the record for the verdict finding the defendant guilty of criminal negligence proximately resulting in the death of the decedent. For this reason, the conviction and sentence are vacated, and the motion of the defendant for judgment of nonsuit is sustained on this appeal. Under G.S. § 15-173, this ruling has the force and effect of a verdict of not guilty.