Loving v. Whitton

84 S.E.2d 919 (1954)

241 N.C. 273

Mrs. Freda M. LOVING v. Earle WHITTON and Richard D. Gibson.

No. 524.

Supreme Court of North Carolina.

December 15, 1954.

*921 Francis H. Fairley and Robinson & Jones, Charlotte, for defendant-appellant Richard D. Gibson.

Tillett, Campbell, Craighill & Rendleman, Charlotte, for plaintiff-appellee.

Helms & Mulliss, Wm. H. Bobbitt, Jr., and Cochran, McCleneghan & Miller, Charlotte, for defendant-appellee Earle Whitton.

BARNHILL, Chief Justice.

On the question raised by the demurrer ore tenus interposed in this Court by the defendant Gibson, the essential determinative facts alleged by plaintiff may be summarized without quoting verbatim the several allegations of negligence contained in the complaint. These facts, for the purpose of decision of this question, are admitted by the demurrer and must be treated as facts agreed.

She alleges that (1) East Seventh Street is an arterial or through street, (2) Laurel Avenue is a servient highway, and (3) Whitton, traveling on Laurel Avenue, and Gibson, going east on East Seventh Street, approached the intersection of the two streets at approximately the same time.

Then, as to Whitton she alleges that he failed to stop his vehicle "at the stop sign which had been erected at said intersection, and on the contrary and in violation of the traffic ordinances of the City of Charlotte, he proceeded to drive said Cadillac automobile into said intersection and directly in front of and into the path of the DeSoto automobile driven by the defendant Gibson," and that he "drove the said Cadillac automobile in a careless and negligent manner, in that he failed to maintain a proper lookout, failed to keep said Cadillac automobile under proper control, failed to yield the right-of-way to the defendant Gibson who was approaching said intersection at approximately the same time * * * and he carelessly and negligently operated said Cadillac automobile at a speed that was greater than was reasonable and prudent under the conditions then and there existing," and "carelessly and negligently drove said Cadillac automobile in front of and into the path of the automobile driven by the defendant Gibson" "so that there occurred a collision between said two automobiles."

She alleges that defendant Gibson "drove his said DeSoto automobile in a careless and reckless manner, in that he failed to maintain a proper lookout, failed to keep said DeSoto automobile under proper control, failed to give any notice or warning of his approach to said intersection, and he drove said DeSoto automobile at a speed that was greater than was reasonable and prudent under the conditions then and there existing and at a speed in excess of 35 miles per hour in a residential district, and he carelessly and negligently drove said DeSoto automobile into the right side of the automobile driven by the defendant Whitton with great force and momentum."

She alleges further that the alleged negligence of the two defendants concurred in causing the collision of the two vehicles as the result of which she sustained certain personal injuries.

*922 These allegations bring this case within the line of decisions represented by Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, and Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361. See also Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Smith v. Sink, 211 N.C. 725, 192 S.E. 108, and Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197.

"Proximate cause is a prerequisite of liability for negligence and foreseeability is an essential element of proximate cause. Hence, in the final analysis, reasonable foreseeability on the part of the original actor of the subsequent intervening act and the resultant injury is the test." Shaw v. Barnard, 229 N.C. 713, 51 S.E.2d 295, 297, and cases cited.

There is no allegation that Gibson, in the exercise of due care, should have observed that Whitton did not intend to stop in ample time for him (Gibson) to decrease his speed or stop and avoid the collision. Matheny v. Central Motor Lines, supra; Brown v. Southern Paper Products Co., 222 N.C. 626, 24 S.E.2d 334. In the absence of any fact or circumstance sufficient to put Gibson on notice that Whitton did not intend to stop at the intersection or yield the right of way, Gibson had the right to assume that Whitton would obey the mandates of our traffic regulations and yield the right of way to him. He was traveling on the through highway. He and Whitton approached the intersection at approximately the same time when Whitton, without stopping, drove his vehicle "into said intersection and directly in front of and into the path of" the automobile he was driving.

Under the circumstances detailed in the complaint, irrespective of his speed or failure to keep a proper lookout, Gibson could not have avoided a collision with the Whitton vehicle. As between Gibson and Whitton, or a passenger on Whitton's vehicle, the conduct of Gibson may not be held to constitute one of the proximate causes of the collision. The conduct of Whitton made the collision inevitable, insulated any prior negligence of Gibson, and constitutes the sole proximate cause of the collision. Aldridge v. Hasty, supra; Reeves v. Staley, supra.

The second provision of G.S. § 1-240 is not applicable to the facts in this case. That provision is designed for the protection of the defendant or defendants in cases where the plaintiff elects to sue some but not all of the alleged joint tortfeasors. Here plaintiff sues all. Even if she stated a good cause of action against both, the liability of each would be determined by the verdict on the issues directed to her cause of action. Then, if Whitton should be required to pay the whole judgment, he could protect himself by following the procedure prescribed by the first provision of G.S. § 1-240. It follows that Whitton has no right to insist that Gibson be retained as a party defendant in this action for the purpose of enforcing contribution, and that Gibson's exception to the judgment of the court below striking certain allegations in his answer is without merit.

In the event plaintiff fails to apply for and obtain leave to amend within the time allowed by law, G.S. § 1-131, defendant Gibson is entitled to judgment that he go hence without day. It is so ordered.

Demurrer ore tenus sustained.