Jackson v. McCoury

101 S.E.2d 377 (1958)

247 N.C. 502

Sampson JACKSON v. Zelzah McCOURY.

No. 453.

Supreme Court of North Carolina.

January 10, 1958.

*380 Smith, Leach, Anderson & Dorsett, Raleigh, for defendant-appellant.

Mordecai, Mills & Parker, Raleigh, for plaintiff-appellee.

WINBORNE, Chief Justice.

The question involved on this appeal, as aptly stated in brief of defendant-appellant, is "Whether the court erred in denying his motion for nonsuit made at close of plaintiff's evidence and renewed at the close of all the evidence, in finding the facts incorporated in the judgment, and in rendering the judgment."

In this connection it must be borne in mind that this action is based on what is *381 denominated a small claim, defined and authorized by 1955 session of the General Assembly of North Carolina in an act entitled "An Act to Expedite the Adjudication of Small Claims in the Superior Court." Laws 1955, c. 1337. Under this act, in pertinent part, a small claim is defined in Section 1, subsection (a) as "An action in which the relief demanded is a money judgment and the sum prayed for (exclusive of interests and costs of court) by the plaintiff, defendant, or other party does not exceed one thousand dollars."

It is declared in Section 3 of the act that in such action no jury trial shall be had unless a party thereto, in the first pleading filed by him, shall demand a jury trial. And it does not appear that in case in hand a jury trial was demanded by either party. Therefore findings of fact made by presiding judge, supported by competent evidence, have the force and effect of a jury verdict, and are binding on appeal.

And in connection with the question presented, it must be borne in mind that by virtue of the provisions of G.S. § 20-158(a) Martin Street is a through or dominant street and Harrington Street is subservient thereto. This statute, G.S. § 20-158, prescribes that (a) The State Highway and Public Works Commission, with reference to State highways, and local authorities with reference to highways under their jurisdiction, are 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 that 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. And the same section of the statute declares that "No failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence." See Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658; Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357, and cases cited. G.S. § 20-158(a).

Plaintiff alleges in his complaint that at the southeast intersection of Martin and Harrington Streets there is a duly erected stop sign requiring northbound traffic on Harrington Street to stop before entering and proceeding through the said intersection. And the parties stipulate that there was a stop sign on the east side of S. Harrington Street 16 feet south of said intersection. This is sufficient to raise the inference that such sign was erected pursuant to competent authority. Johnson v. Bell, supra; Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514. Compare Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361.

And regarding this statute it is held in Sebastian v. Horton Motor Lines, supra [213 N.C. 770, 197 S.E. 541], that "As a necessary corollary or as the rationale of the statute, that where the party charged is a defendant in any such action, the failure so to stop is not to be considered negligence per se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence."

In like manner and for the same reason, the principle may be extended to anyone who violates the statute. See Johnson v. Bell, supra, and cases cited.

"The purpose of highway stop signs," as stated by this Court in opinion by Devin, J., later C. J., in Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361, 365, "is to enable the driver of a motor vehicle to have opportunity to observe the traffic conditions on the highways and to determine when in the exercise of due care *382 he might enter upon the intersecting highway with reasonable assurance of safety to himself and others. * * * And the statute G.S. § 20-154 also requires that before starting from a stopped position and moving into the line of traffic the driver shall first see that such movement can be made in safety."

And in the Matheny case the Court went on to say that "Since at the intersection described in the case at bar the driver of an automobile approaching the intersection from the north was required, (G.S. § 20-158) to bring his automobile to a complete stop, the right of way, or rather the right to move forward into the intersection, would depend upon the presence and movement of vehicles on the highway which he intended to cross. The rule as to right of way prescribed by G.S. § 20-155 applies to moving vehicles approaching an intersection at approximately the same time * * * where the driver has already brought his automobile to a complete stop, thereafter the duty would devolve upon him to exercise due care to observe approaching vehicles and to govern his conduct accordingly. One who is required to stop before entering a highway should not proceed, with oncoming vehicles in view, until in the exercise of due care he can determine that he can do so with reasonable assurance of safety * * * Generally when the driver of an automobile is required to stop at an intersection he must yield the right of way to an automobile approaching on the intersecting highway * * * and unless the approaching automobile is far enough away to afford reasonable ground for the belief that he can cross in safety he must delay his progress until the other vehicle has passed." See also Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115; State v. Hill, 233 N.C. 61, 62 S.E.2d 532; Hawes v. Atlantic Refining Co., supra; Badders v. Lassiter, supra.

In the light of these principles, applied to the evidence in case in hand, whether defendant, under the circumstances, acted as a reasonably prudent person would have under similar circumstances, is properly a jury question, and the judge has resolved the issue in this respect in favor of plaintiff.

On the other hand defendant, appellant, contends and insists that upon his own evidence plaintiff is guilty of contributory negligence in the operation of his automobile at the time and place in question.

In this connection, the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives or should give notice to the contrary, he will be entitled to assume and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway. Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Johnson v. Bell, supra; Hawes v. Atlantic Refining Co., supra; Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373, 377.

However, as stated in Blalock v. Hart, supra, in opinion by Johnson, J., "The driver on a favored highway protected by a statutory stop sign, G.S. § 20-158 does not have the absolute right of way in the sense he is not bound to exercise care toward traffic approaching on an intersecting unfavored highway. It is his duty, notwithstanding his favored position, to observe ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon him in approaching and traversing such an intersection (1) to drive at a speed no greater than is reasonable and prudent under the conditions then existing, (2) to keep his motor vehicle under control, (3) to keep a reasonably careful lookout, and (4) to take such action as an ordinarily prudent person would take in avoiding a *383 collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered or should have been discovered," citing Hawes v. Atlantic Refining Co., supra; Reeves v. Staley, supra.

In the light of these principles, applied to case in hand, this Court holds that the evidence shown in the record is sufficient to take the case to the jury on the issue of contributory negligence of plaintiff, but is not sufficient to compel the inference of negligence on the part of plaintiff as one of the proximate causes of the collision and resultant damage to him. The mere skidding of a motor vehicle does not imply negligence. For recent declarations on the subject see Wise v. Lodge, N.C., 100 S.E.2d 677 and Durham v. McLeon Trucking Co., N.C., 100 S.E.2d 348. And the judge has found that plaintiff did not, by his own negligence, contribute to his damage as alleged in the answer, and such finding is binding on this appeal.

For reasons stated the judgment below is

Affirmed.