QUEEN CITY COACH COMPANY v. Fultz

98 S.E.2d 860 (1957)

246 N.C. 523

QUEEN CITY COACH COMPANY v. Robert Emerson FULTZ and Mrs. Robert Emerson Fultz. Ralph C. LITTLE v. Robert Emerson FULTZ and Mrs. Robert Emerson Fultz.

No. 243.

Supreme Court of North Carolina.

June 28, 1957.

*863 Harris & Coble, Albemarle, for plaintiffs, appellants.

Carpenter & Webb, Charlotte, for defendants, appellees.

BOBBITT, Justice.

All questions posed relate to the electrical signal device on the Fultz car. Appellants contend that, "without a prior showing that such signal was `approved by Department' as required by G.S. § 20-154(b)," the evidence relating to the use thereof should have been excluded. Their assignments of error challenge (1) the competency of such evidence, (2) the charge of the court relating thereto, and (3) the court's failure to give requested instructions.

If the Fultz car made a left turn without giving a signal as required by G.S. § 20-154, this statutory violation would constitute negligence per se; and if such negligence proximately caused the collision, plaintiffs were entitled to affirmative answers to the negligence issues. Bradham v. McLean Trucking Co., 243 N.C. 708, 91 S.E.2d 891, and cases cited. In Banks v. Shepard, 230 N.C. 86, 52 S.E.2d 215, the only case cited by appellants, the alleged violation by defendant of G.S. § 20-154 was considered with reference to defendant's negligence.

Here the jury's verdicts established the negligence of defendants. Error, if any, in relation to the negligence issues, was not prejudicial. Anderson v. Talman Office Supplies, 236 N.C. 519, 73 S.E.2d 141; Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846.

We consider the assignments of error as related to the contributory negligence issues. Defendants' allegations of contributory negligence include allegations to the effect that the collision was proximately caused by the plaintiffs' failure to exercise due care "to keep a proper lookout while operating the bus on a public highway" and "to heed and have due regard for the signal for a left turn given by Mrs. Fultz."

Apart from safety statutes prescribing specific rules governing the operation of motor vehicles, a person operating a motor vehicle must exercise proper care in the way and manner of its operation, proper care being that degree of care an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Henderson v. Henderson, 239 N.C. 487, 491, 80 S.E.2d 383; Kellogg v. Thomas, 244 N.C. 722, 727, 94 S.E.2d 903; Weavil v. C. W. Myers Trading Post, 245 N.C. 106, 95 S.E.2d 533.

In determining whether Little was negligent in overtaking and attempting to pass the Fultz car, evidence of any signal that indicated the intention of the operator of the Fultz car to make a left turn was relevant and competent. True, there was no evidence that this type of electrical signal device had been approved by the Department; nor was there evidence that it had not been approved by the Department. Even so, the relevancy and competency of the evidence relating to said electrical signal device, when considered in relation to the contributory negligence issues, did not depend upon prior approval by the Department. Apart from G.S. § 20-154, it was for the jury to decide whether the signal was in fact given, *864 whether it was sufficient to indicate an intended left turn by the operator of the Fultz car and whether Little was negligent in failing to observe and heed such signal. Weavil v. C. W. Myers Trading Post, supra.

Appellants' contention in respect of the charge is most clearly presented by their assignment of error (No. 7) directed to a portion thereof in which the court, after noting that there was no evidence as to whether the electrical signal device on the Fultz car had been approved by the Department, instructed the jury, in part, as follows:

"* * * if you find that such car was equipped with a signal device which permitted the operator of the car to cause a light to flash upon the left rear of the automobile, and if you further find that such device was in good working order immediately prior to the collision so that it would cause a light to flash on the left rear of said automobile, which could be reasonably seen by the operator of the bus, and that such flashing light was of a kind which in the common experience of operators of motor vehicles in this State indicates the intention of the driver of the vehicle to make a left turn, then the Court charges you that such signal device would, when operated by the driver of the Fultz car, give notice to the bus driver that Mrs. Fultz intended to make a left turn. The Court further charges you that if you find such a signal was given, the operator of the bus would be required to pay just as much attention to it and to control his bus with due regard as to that signal to the same extent as though there was evidence before you that the signal was approved by the Department of Motor Vehicles, * * *."

It may be conceded that it was technical error to say, "if you find such a signal was given, the operator of the bus would be required to pay just as much attention to it and to control his bus with due regard as to that signal to the same extent as though there was evidence before you that the signal was approved by the Department of Motor Vehicles." (Italics added.) In the absence of evidence that the signal device either had or had not been approved by the Department, there was no occasion for the court or jury to consider what would have been Little's duty if there had been evidence that the signal device had been approved by the Department.

The real point was not whether this type of electrical signal device had been approved by the Department, but whether in fact the electrical signal given by Mrs. Fultz was sufficient to warn Little of her intention to make a left turn. When the charge is read contextually, as related to the signal device, the court made it clear that it was for the jury to decide: (1) whether the signal was in fact given; if so, (2) whether it was sufficient to indicate an intended left turn by the operator of the Fultz car; and if so, (3) whether Little negligently failed to observe and heed such signal.

There is no reasonable ground to believe that the indicated technical error misled the jury or otherwise prejudiced appellants. Such harmless error is insufficient ground for a new trial. Price v. Gray, 246 N.C. 162, 97 S.E.2d 844.

As to the two instructions requested by appellants, one relates explicitly and solely to the negligence issues and was a request for a peremptory instruction in plaintiffs' favor thereon. The other was a request that the court instruct the jury to "disregard all testimony relating to turn signals" and "find the facts as though there were no evidence that any signal was given by Mrs. Fultz to indicate her intention to turn," a request properly refused by the court.

No error.