Hawes v. Atlantic Refining Co.

74 S.E.2d 17 (1953)

236 N.C. 643

HAWES v. ATLANTIC REFINING CO. et al.

No. 597.

Supreme Court of North Carolina.

January 6, 1953.

*20 Poisson, Campbell & Marshall, and Elbert A. Brown, Wilmington, for plaintiff appellee.

James & James, Wilmington, for defendants appellants.

WINBORNE, Justice.

Appellants present for decision on this appeal two questions: (1) Did the trial court err: (1) In overruling defendants' motions aptly made for judgments as of nonsuit under G.S. § 1-183? (2) In charging the jury in the respects covered by exceptions thereto?

As to the first question: Appellants, the defendants, contend, in their brief, that nonsuit should have been allowed for that plaintiff was not only negligent, but that his negligence was the sole proximate cause of the collision and such resulting injury and damage as he may have sustained. But taking the evidence shown in the case on appeal, in the light most favorable to plaintiff, and giving to him the benefit of every reasonable intendment and inference to be drawn therefrom, tested by pertinent statutes of this State, and decisions of this Court, we hold that the evidence is not so clear in meaning as to sustain defendants' contention.

In this connection it is appropriate to consider the legal rights and obligations of the respective parties at the time, and under the circumstances of the collision here involved.

The speed statute, G.S. § 20-141, as rewritten in Section 17, Chapter 1067 of 1947 Session Laws of North Carolina, in so far as pertinent to case in hand, declares:

"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing. "(b) Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of the following speeds: "1. Twenty miles per hour in any business district; "2. Thirty-five miles per hour in any residential district; "3. * * * "4. Fifty-five miles per hour in places other than those named in paragraphs *21 1 and 2 of this Subsection for passenger cars * * *. "(c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * * or when special hazard exists with respect to * * * other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of all persons to use due care."

And this statute also provides in Subsection (e) that: "The foregoing provisions of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident."

And it is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is encumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators so using a highway, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am.Jur. Automobiles, §§ 165, 166, 167. Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361.

Furthermore, "one is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption that others will exercise care for their own safety." 45 C.J. 705; 65 C.J.S., Negligence, § 15; Hobbs v. Queen City Coach Co., supra; Bobbitt v. Haynes, supra, and cases there cited.

Moreover, the statute, G.S. § 20-158(a), prescribes that the State highway and public works commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers to come to full stop before entering or crossing such designated highway, and that wherever any such signs have been so erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. And the same section, G.S. § 20-158(a), also declares that "No failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence." See Sebastion v. Motor Lines, 213 N.C. 770, 197 S.E. 539; Reeves v. Staley, supra; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Lee v. Robertson Chemical Corp., 229 N.C. 447, 50 S.E.2d 181; Bobbitt v. Haynes, supra; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658.

Indeed, the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives, or should give notice to the contrary, he will be entitled to assume *22 and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway. Reeves v. Staley, supra; Johnson v. Bell, supra.

On the other hand, the operator of an automobile traveling upon such intersecting highway and traversing a designated main traveled or through highway, is under no duty to anticipate that the operator of an automobile, upon such designated highway, approaching the intersection of the two highways, will fail to observe the speed regulations, and the rules of the road, and, in the absence of anything which gives or should give notice to the contrary, he is entitled to assume and to act upon the assumption that the operator of the automobile on such designated highway will act in obedience to such regulations and the rules of the road.

And in this connection in Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361, 366, in opinion by Justice Devin, now Chief Justice, it is said: "Generally when the driver of an automobile is required to stop at an intersection he must yield the right of way to an automobile approaching on the intersecting highway * * * and unless the approaching automobile is far enough away to afford reasonable ground for the belief that he can cross in safety he must delay his progress until the other vehicle has passed." See also Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115; State v. Hill, 233 N.C. 61, 62 S.E.2d 532.

In the light of these statutes, and principles of law, applied to the evidence in hand, controverted questions arise: Did plaintiff come to a full stop before entering or attempting to cross such designated highway? If so, did he, before entering such highway, in the exercise of due care determine that he could do so with reasonable assurance of safety? Plaintiff's evidence is that he did stop; that he did so at a point from which he could see up and down, north and south, along the designated highway; that the view to the south was for a distance of half a block100 yards; that no vehicle was in sight; that then he proceeded with his automobile in low gear at speed of five miles per hour, and was struck amidship after traveling ten feet or a little more; and that defendant's car approached at speed of 50 to 55 miles per hour,"balling the jack" in opinion of Mrs. Hawes.

"Ball the jack", as defined in Wentworth's American Dialect Dictionary, p. 41, means "To move swiftly", as "the car certainly did ball the jack". And Berry and Van den Bark's "The American Thesaurus of Slang", a "dictionary of unconventional speech", says that "Ball the jack" is used in relation to motion, travel and transportation to indicate "swiftness, speeddrive fast". See the Index p. 857. At any rate, as used by Mrs. Hawes, it may be inferred that the phrase is the antithesis of careful and prudent operation of an automobile under the conditions then existing and of decrease in speed within the meaning of the statute, G.S. § 20-141, as rewritten, supra, duties which plaintiff had the right to assume the operator of an automobile upon the designated highway would observe.

Moreover, applying mathematics to the rate of speed at which the evidence of plaintiff tends to show the two automobiles were traveling, it is not unreasonable to infer that while plaintiff's automobile was starting and traveling ten feet or more, the automobile of defendant could come from beyond the range of vision of one stopping at the intersection, whereas if traveling at a prudent rate of speed it would not be expected to do so. In other words, the case does not come within the purview of those cases where the evidence tends to show that the driver failed to see what was in clear view.

Attention is given to photographs sent up as parts of the case on appeal. They were admitted in the trial court only for purposes of illustrating the testimony of witnesses. They may not be admitted as substantive evidence. But, where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy. See State v. *23 Gardner, 228 N.C. 567, 46 S.E.2d 824, where authorities are assembled. See also Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909. As an example, the photographs here show houses along the streets. But there is no testimony that scene of the collision was a business district, as defined in G.S. § 20-38(a), or a residential district, as defined in G.S. § 20-38(w) 1, to which the speed statute G.S. § 20-141, as amended, relates.

Now as to the second question: A reading of the charge in the light of the pleadings and evidence offered leads to the conclusion that prejudicial error is not made to appear.

Hence, in the judgment below we find

No error.

PARKER, J., took no part in the consideration or decision of this case.