Walker v. American Bakeries Co.

67 S.E.2d 459 (1951)

234 N.C. 440

WALKER v. AMERICAN BAKERIES CO.

No. 383.

Supreme Court of North Carolina.

November 7, 1951.

*460 John Hugh Williams, Concord, for plaintiff, appellee.

Hartsell & Hartsell, Concord, for defendant, appellant.

ERVIN, Justice.

The defendant deems the question of the sufficiency of the plaintiff's evidence to carry the case to the jury foreclosed against it by prior decisions. Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538; Pridgen v. Produce Co., 199 N.C. 560, 155 S.E. 247; Stevens v. Rostan, 196 N.C. 314, 145 S.E. 555. For this reason, it does not assign as error the refusal of the trial judge to dismiss the action upon a compulsory nonsuit.

Its counsel earnestly contend, however, that the judge committed error in giving the jury this instruction: "The court charges you if there was a solid line and if the plaintiff had a clear unobstructed view *461 for a distance of 500 feet or more, the law did not require him to wait until he got away from this line before he could pass."

The driver of an automobile desiring to pass an overtaken vehicle must observe the statutory regulations which prohibit passing at certain places on the highway. Two of these regulations forbid the overtaking and passing of vehicles upon curves in the highway where specified conditions exist. They are as follows:

1. "The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction * * * upon a curve in the highway where the driver's view along the highway is obstructed within a distance of five hundred feet." G.S. § 20-150(b).

2. "The driver of a vehicle shall not drive to the left side of the center line of a highway * * * upon a curve in the highway where such center line has been placed upon such highway by the state highway and public works commission, and is visible." G.S. § 20-150(d).

These regulations are parts of the same statute. It is a basic rule of statutory construction that "the various provisions of an act should be read so that all may, if possible, have their due and conjoint effect without repugnancy or inconsistency, so as to render the statute a consistent and harmonious whole." 50 Am. Jur., Statutes, section 363. See, also, in this connection: Rice v. Denny Roll & Panel Co., 199 N.C. 154, 154 S.E. 69; Jones v. Board of Education, 185 N.C. 303, 117 S.E. 37.

When this rule is applied in this case, it is evident that the statutory provisions under consideration are harmonious rather than conflictive. They are not designed to regulate the behaviour of the operator of an overtaking automobile in any event unless he is traveling upon a curve in the highway. Whether the one statutory regulation or the other applies to the driver of an overtaking vehicle proceeding upon a curve in the highway depends on whether the curve is marked by a visible center line placed upon the highway by the state highway and public works commission. Where the curve is so marked, the action of the operator of the overtaking automobile is governed by G.S. § 20-150(d), which forbids him to drive to the left side of the center line in order to pass the overtaken vehicle; and where the curve is not so marked, the conduct of the driver of the overtaking automobile is controlled by G.S. § 20-150(b), which permits him to pass the overtaken vehicle unless his view along the highway is obstructed within a distance of five hundred feet.

The instruction under examination would be unobjectionable if all of the testimony supported the plaintiff's contention that he overtook and attempted to pass the defendant's truck upon a straight stretch of highway. Furthermore, it would be harmless if all the evidence indicated that the event occurred upon an unmarked curve. But the defendant introduced testimony tending to show that the plaintiff undertook to pass the overtaken truck upon a curve in the highway marked by a visible center line placed upon the highway by the state highway and public works commission. In the light of this evidence, the wholly unqualified instruction that the plaintiff had the legal right to cross the center line in order to pass the overtaken truck constituted prejudicial error, entitling defendant to a new trial. The unqualified instruction nullified the provisions of G.S. § 20-150(d).

Although the statute is designed primarily to prevent collision between an overtaking automobile and a vehicle coming from the opposite direction, its provisions are germane to litigation between an overtaking motorist and the driver of an overtaken vehicle if there is evidence to the effect that the underlying accident was occasioned by an unsuccessful effort on the part of the former to pass the latter upon a marked curve. The driver of the overtaken vehicle is certainly not required in such case to anticipate that the latter will attempt to pass in violation of the statute.

New trial.