Clark v. Emerson

95 S.E.2d 880 (1957)

245 N.C. 387

David M. CLARK v. Dale EMERSON, G. C. Emerson and Lee Kirkman.

No. 669.

Supreme Court of North Carolina.

January 11, 1957.

*882 Foy Clark, Mount Airy, for plaintiff-appellant.

Folger & Folger, by Fred Folger, Jr., Mount Airy, for defendant-appellee Kirkman.

RODMAN, Justice.

The evidence, when viewed in the most favorable aspect for plaintiff, would permit the jury to find these facts: Main Street in Mount Airy lies in a north-south direction. It is intersected by Wilson Street. The intersection does not form a continuous line. The intersection of West Wilson and Main is north of the intersection of East Wilson and Main Streets. Haymore's Service Station is located at the intersection of Main and East Wilson Streets and on the south side of Wilson Street. Plaintiff's car was parked about 8:15 p. m. on the west side of Main Street, 80 to 100 feet south of the point where East Wilson Street intersects Main Street. It was raining. Street and service station lights were burning. There was a traffic light at the intersection of Main and West Wilson. Dale Emerson, driving his father's pickup truck, was traveling southward on Main Street. Defendant Kirkman, whose truck-trailer loaded with tobacco had been parked in Haymore's Service Station, pulled into Main Street and crossed it to travel in a southerly direction. When Kirkman drove from the filling station to cross Main Street, the Emerson car was plainly visible. It was traveling at a speed estimated at from 20 to 30 m. p. h. It "was close to 100 feet north of the stop light. The pickup truck was approximately 200 feet north of where Mr. Kirkman pulled into South Main Street when I first saw it." The traffic light was green, giving Emerson the right of way at the intersection.

Kirkman entered Main Street at an angle to travel in a southward direction. The tractor portion was in the west lane of the street and the trailer in the east portion of the street. Emerson, in his attempt to *883 avoid a collision with the Kirkman vehicle, pulled to his right and collided with plaintiff's parked car. He did not attempt to apply his brakes. "Dale Emerson acknowledged to the police that the accident was his fault and he would take the responsibility for it." Speed in the area where the collision occurred was, Kirkman alleged, limited to 20 m. p. h.

The only evidence as to damage was: "The whole left side of the plaintiff's car was damaged from the back up to the front part, I don't know how far * * *" "I went out and looked at my car and found the left rear quarter panel and the left door both damaged." No one placed a monetary value on the damage inflicted.

The foregoing recapitulation of facts which the jury might accept would suffice for it to conclude as to defendant Emerson and as his admissions of fault would indicate (a) that he was driving at an excessive and unreasonable rate of speed; (b) proper attention to the highway should have disclosed the presence of Kirkman's truck in time for him to stop by the application of his brakes; or (c) that Emerson could and should have passed Kirkman's truck on the east or to the left instead of the right as Emerson attempted to do.

Excessive speed is negligence. Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197; Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190, 197; Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345. One who operates a motor vehicle must be reasonably vigilant and anticipate the use of the highways by others. A failure to maintain a reasonable lookout is negligence. Adams v. Beaty Service Co., 237 N.C. 136, 74 S.E.2d 332; Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17. Brakes are placed on cars to be used. A failure to use the brakes when such use would prevent a collision is negligence. Daniel v. East Tennessee Packing Co., 215 N.C. 762, 3 S.E.2d 282. A violation of G.S. § 20-149(a) in overtaking and passing a motor vehicle is negligence. Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565. If the jury should conclude that defendant Dale Emerson was negligent in any or all of these respects, it could find that his negligence was the proximate cause of plaintiff's damage. It was for the jury to find the facts and draw the conclusions. If Dale Emerson's negligence was one of the proximate causes of plaintiff's damage, thereby imposing liability on him, liability was also, under the admissions in this case, imposed on G. C. Emerson.

As touching the liability of the defendant Kirkman, it is appropriate to inquire where the Emerson car was when Kirkman drove into the street. The jury might find that Emerson was only 200 feet away and that he was plainly visible, that he had a green light beckoning him on, that he was traveling 30 m. p. h., a lawful speed under existing conditions, that the Kirkman truck was loaded and starting from rest would move slowly across the street and directly into the path of the Emerson car. If the jury should find from the testimony that these are in truth the facts, it could well conclude that a reasonably prudent man would have heeded the statute, G.S. § 20-156(a), and waited the necessary five seconds for Emerson to pass. If impatience caused Kirkman to disregard the statute and venture where a reasonably prudent person would not have gone, he would be negligent and such negligence, if the proximate cause of the injury, would create liability. It was a question for the jury, not the court. Gantt v. Hobson, 240 N.C. 426, 82 S.E.2d 384; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

Failure to prove the monetary loss sustained by plaintiff resulting from the collision would prevent the jury from awarding compensatory damages. Lieb v. Mayer, 244 N.C. 613, 94 S.E.2d 658. Plaintiff *884 could not, however, be deprived of such damage as he was entitled to by nonsuit. Hutton & Bourbonnais v. Cook, 173 N.C. 496, 92 S.E. 355.

What credit the jury will give to the evidence and how it will resolve the conflicts in the testimony is not to be determined by the judge.

New trial.

JOHNSON, J., not sitting.