Lucas v. White

102 S.E.2d 387 (1958)

248 N.C. 38

Blanche Ivey LUCAS v. Clifford Leslie WHITE and wife, Marion D. White, Lawrence A. Freeman and Jesse H. Dunscomb.

No. 167.

Supreme Court of North Carolina.

March 19, 1958.

*390 Lonnie B. Williams, Otto K. Pridgen, II, Clayton C. Holmes, Wilmington, for plaintiff-appellant.

Isaac C. Wright, Wilmington, for defendant-appellee.

WINBORNE, Chief Justice.

Appellant states this as the question involved on this appeal: "Is nonsuit proper where evidence tends to show that defendant observed or should have observed an approaching vehicle weaving across the road and in the left-hand lane and made no effort to avoid the collision although he could have done so?" In the light of the allegations of the complaint, paragraph 22, the answer is Yes. For there is fatal 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 is a corresponding allegation. And where there is a material variance between the allegation and proof, such defect may be taken advantage of by motion for judgment as of nonsuit. Brady v. Nehi Beverage Co., 242 N.C. 32, 86 S.E.2d 901, citing 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, 242 N.C. 93, 86 S.E.2d 786, and numerous other cases cited therein and annotated thereon.

Applying this principle to the evidence shown in the record, and eliminating the evidence at variance with the allegation, there is no evidence of negligence by defendant as a proximate cause of the injury of which complaint is made.

In this connection it is provided by statute, G.S. § 20-148, that "drivers of vehicles proceeding in opposite directions shall pass each other to the right, each giving to the other at least one-half of the main-traveled portion of the roadway as nearly as possible." Hoke v. Atlantic Greyhound Corp., 226 N.C. 692, 40 S.E.2d 345.

*391 The plaintiff's allegation and evidence tends to show that defendant was driving on his right side of the highway, at a lawful and moderate rate of speed, thirty miles per hour in a thirty-five mile zone, had the car under control, and, as in Morgan v. Saunders, 236 N.C. 162, 72 S.E.2d 411, 412, after his car was struck by the White car, it still remained on the right side of the highway near the center line.

Indeed, this Court has declared in many cases "that the driver of an automobile who is himself observing the law (G.S. § 20-148) in meeting and passing an automobile proceeding in the opposite direction has the right ordinarily to assume that the driver of the approaching automobile will also observe the rule and avoid a collision." So wrote Devin, C. J., in Morgan v. Saunders, supra, citing Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607; Hancock v. Wilson, 211 N.C. 129, 189 S.E. 631; Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707; Brown v. Southern Paper Products Co., Inc., 222 N.C. 626, 24 S.E.2d 334; Hoke v. Atlantic Greyhound Corp., 227 N.C. 412, 42 S.E.2d 593.

While the right of a motorist to assume that a driver of a vehicle coming from the opposite direction will obey the law and yield one-half the highway, or turn out in time to avoid collision, and to act on such assumption in determining the manner of using the road, is not absolute, there is nothing in the record on this appeal to show, or to put defendant on notice, that the driver of the White car was in a helpless condition or from any cause unable to turn his automobile to the right of the center of the road in passing the Dunscomb car.

Lastly, in respect to the alleged remark made by defendant to plaintiff, at the hospital, which he denies, "that he felt like it was partly his fault," we find it said in Austin v. Overton, 222 N.C. 89, 21 S.E.2d 887, 889, opinion by Stacy, C. J., speaking of a similar remark in that case, "Even so, the conclusion is a legal one, determinable alone by the facts."

In accordance therewith the statement if so made by defendant to plaintiff in hospital in the instant case is not sufficient, standing alone, to make out a case for the jury.

Hence the judgment as of nonsuit is

Affirmed.