Brady v. NEHI BEVERAGE COMPANY

86 S.E.2d 901 (1955)

242 N.C. 32

Virginia Maness BRADY v. NEHI BEVERAGE COMPANY, Inc. (Original Defendant) and Lester W. Brady (Additional Defendant).

No. 593.

Supreme Court of North Carolina.

April 13, 1955.

*910 Seawell & Wilson, Boyette & Brogden, Carthage, for plaintiff appellee.

W. D. Sabiston, Jr., Carthage, Ruark, Young & Moore, Raleigh, for defendant Nehi Beverage Co., appellant.

Gavin, Jackson & Gavin, Sanford, for additional defendant Brady, appellee.

WINBORNE, Justice.

While appellant brings forward many assignments of error, those numbered 3 and 4 based upon exceptions of like numbers, to the overruling of motion of appealing defendant, entered when plaintiff first rested her case and renewed at the close of all the evidence, for judgment as of nonsuit under the provisions of G.S. § 1-183, present the determinative question. The exceptions are well taken.

The defendant appellant contends, as two of the grounds for judgment as of nonsuit, and we hold rightly so, that the record and case on appeal show: I. That there is a material variance between the allegations of plaintiff's complaint, and the proof offered upon the trial. II. That there is no evidence of actionable negligence against defendant, the appellant.

I. In the first place there is a fatal variance between the allegation and the proof.

Turning to the complaint of plaintiff, and the amendment thereto, it is apparent that the theory on which she based her case is that the paved road on which the automobile in which she was riding was the dominant highway, and that the dirt road on, and out of which defendant's truck came into the intersection of the two roads, was the subservient road. In the *911 order entered at pre-trial hearing she contended "that the operator of said truck entered said highway from a blind side of the road, within 60 feet from the automobile in which plaintiff was riding, without observing or looking or heeding the warning horn of the automobile in violation of G.S. § 20-158." And in the amendment to her complaint it is alleged: "2. That defendant's agent * * * was negligent in that (a) He entered a public highway from a private road or drive and failed to yield the right of way to all vehicles approaching on such public highway, including the automobile in which plaintiff was riding, in violation of G.S. § 20-156"; and "(b) He failed to stop at the public highway upon which the automobile in which plaintiff was riding was traveling and proceeding in violation of G.S. § 20-158."

In this connection G.S. § 20-156 provides in pertinent part that "(a) The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway."

And G.S. § 20-158 provides in pertinent part that "(a) The State Highway and Public Works Commission, with reference to State highways * * * are (is) hereby authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles to come to full stop before entering or crossing such designated highway, and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. * * *"

But the evidence offered upon the trial, instead of supporting the theory of the complaint, and the amendment thereto, clearly shows that the two roads here involved were public roads of equal dignity, neither having been designated by the State Highway and Public Works Commission as "main traveled or through highway" as defined in G.S. § 20-158(a).

Therefore, there is a material variance between the allegation and the proof. Plaintiff must make out her case according to her allegations, that is, secundum allegata. The court cannot take notice of any proof unless there be a corresponding allegation. And where there is a material variance between the allegation and the proof, such defect may be taken advantage of by motion for judgment as of nonsuit. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147; Wilkins v. Commercial Finance Co., 237 N.C. 396, 75 S.E.2d 118; Lyda v. Town of Marion, 239 N.C. 265, 79 S.E.2d 726; Andrews v. Bruton, N.C., 86 S.E.2d 786, and numerous other cases cited therein, and annotated thereon.

II. In considering motion for nonsuit, "the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff", Stacy, C. J., in Harrison v. North Carolina R. Co., 194 N.C. 656, 140 S.E. 598, 600, citing State v. Fulcher, 184 N.C. 663, 113 S.E. 769. See Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, and cases there cited. See also Williams v. Robertson, 235 N.C. 478, 70 S.E.2d 692; Ward v. Cruse, 236 N.C. 400, 72 S.E.2d 835, 38 A. L.R.2d 109; Harris Express v. Jones, 236 N.C. 542, 73 S.E.2d 301; Nance v. Hitch, 238 N.C. 1, 76 S.E.2d 461; Hawkins v. McCain, 239 N.C. 160, 79 S.E.2d 493.

Therefore, taking the evidence offered by the plaintiff, and so much of defendant's evidence as is favorable to plaintiff, or tends to explain and make clear that which has been offered by the plaintiff, as shown in the case on appeal, in the light most favorable to plaintiff, and giving to plaintiff the benefit of every reasonable inference to be drawn therefrom, as the law directs in considering a motion for judgment as of nonsuit, G.S. § 1-183, Nance v. Hitch, supra, this Court is of opinion, and holds, that in the light of the pleadings, there is *912 not sufficient evidence to take the case to the jury on the issue of negligence of defendant, Nehi Beverage Company, as alleged in the complaint as amended.

All the evidence further shows that the truck of defendant came to, and entered the intersection before the automobile in which plaintiff was riding reached the intersection, and that the truck approached the intersection from the automobile's right side of the road. Under such factual situation the truck of defendant had the right of way. G.S. § 20-155 provides: "(a) When two vehicles approach or enter an intersection and/or junction at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in § 20-156." The exception relates to entering from a "private road or drive" as above set forth.

(Take notice in passing that the use of term "and/or" in the statute is not approved. See Gibson v. Central Mfrs. Mut. Ins. Co., 232 N.C. 712, 62 S.E.2d 320.)

The term "right of way" as applied to vehicular travel at intersections of highways and streets, 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, § 362quoted by Ervin, J., and applied in State v. Hill, 233 N.C. 61, 62 S.E.2d 532, 534.

In the Hill case the Court declares these relevant rules:

"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. (Citing cases.)

"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. (Citing cases.) 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. * * *

"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."

In the light of these rules the driver of defendant's truck had the right of way, that is, the right to proceed uninterruptedly in a lawful manner. He was not required to stop. And the evidence is uncontradicted that he entered the intersection operating the truck at a speed of five or ten miles per hour"real slow like", in the language of plaintiff. And he had the right to assume, and to act on the assumption, in the absence of notice to the contrary, that the operator of the automobile in which plaintiff was riding would recognize his right of way and grant him a free passage over the intersection. State *913 v. Hill, supra. In entering the intersection in the way and manner disclosed by the evidence the driver of the truck was proceeding within the law.

For reasons stated the judgment below as it relates to appealing defendant is

Reversed.

BARNHILL, C. J., and DEVIN, J., took no part in consideration or decision of this case.