Jordan v. Blackwelder

108 S.E.2d 429 (1959)

250 N.C. 189

Hazel Foster JORDAN v. Barbara Elmore BLACKWELDER, Robert R. Blackwelder and Edith Lorene Jones.

No. 385.

Supreme Court of North Carolina.

April 29, 1959.

*431 Carpenter & Webb, Charlotte, for appellant.

Scott, Collier, Nash & Harris, Statesville, for appellees.

DENNY, Justice.

The appellant's first exception and assignment of error is directed to the refusal of the trial judge to sustain her motion for judgment as of nonsuit to the cross-action, interposed at the close of the evidence of the original defendants and renewed at the close of all the evidence.

In our opinion, when the evidence is considered in the light most favorable to the original defendants, as it must be on motion for nonsuit of their cross-action, it is sufficient to carry the case to the jury, and we so hold.

The appellant's fourth assignment of error is to that portion of the court's charge to the jury, set out below between the letters (A) and (B), and her fifth assignment of error is to that portion of the charge set out herein between the letters (C) and (D): "(A) Mrs. Blackwelder, approaching the intersection from the east, that is admitted, and being on the left of the automobile driven by Miss Jones, if the two automobiles entered or approached the intersection at approximately the same time, then it was the duty of Mrs. Blackwelder to yield the right of way to the automobile driven by Miss Jones and if she failed to yield the right of way under such circumstances, that would be negligence on the part of Mrs. Blackwelder. Two motor vehicles approach or enter an intersection at approximately the same time within the purview of these rules, whenever their respective distance from the intersection, their relative speed and other attendant circumstances show that the driver of the vehicle on the left should reasonably apprehend that there is danger of a collision unless he delays his progress until the vehicle on the right has passed, (B)

"(C) but the driver of a vehicle approaching but not having entered an intersection shall yield the right of way to the vehicle already within such intersection, so *432 if at the time the defendant Miss Jones approached the intersection but not having entered the intersection the defendant Mrs. Blackwelder had already driven her automobile within the intersection, then it was the duty of Miss Jones to yield the right of way to Mrs. Blackwelder, and if she failed under such circumstances to yield the right of way, that would be negligence on the part of Miss Jones. (D)"

The above instructions were given pursuant to the provisions of G.S. § 20-155 which in pertinent part reads as follows:

"(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 and except where the vehicle on the right is required to stop by a sign erected pursuant to the provisions of § 20-158 * *. (b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right-of-way to a vehicle already within such intersection and/or junction whether the vehicle in the junction is proceeding straight ahead or turning in either direction * * *."

The above statute is not applicable to the facts in this case. The factual situation with respect to the right of way of the respective parties involved on this appeal is governed by G.S. § 20-158 which in part reads as follows: "(a) The State Highway Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are 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 and yield the right-of-way to vehicles operating on the designated main traveled or through highway and approaching said intersection. 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."

This latter statute not only requires the driver on the servient highway or street to stop, but such driver is further required, after stopping, to exercise due care to see that he may enter or cross the dominant highway or street in safety before entering thereon. Primm v. King, 249 N.C. 228, 106 S.E.2d 223; Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357; Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Satterwhite v. Bocelato, D.C., 130 F. Supp. 825. Cf. Downs v. Odom, N.C., 108 S.E.2d 65.

We think these assignments of error were well taken and must be upheld. Consequently, the appellant is entitled to a new trial on the cross-action and it is so ordered.

The appellant's seventh assignment of error deals with the failure of the court below to allow the appellant credit for the amount which her insurance carrier paid the plaintiff, which amount was deducted by the court below from the verdict in favor of the plaintiff.

In light of the stipulation entered into by and between the parties, the court was authorized, in its discretion, to reduce the amount of any verdict recovered by *433 the plaintiff by such amounts ($688.73) as had been paid to the plaintiff by the additional defendant's insurance carrier to cover medical expenses.

The plaintiff, pursuant to her pleadings, could recover no verdict against the additional defendant, but only against the original defendants. Hence, if the jury had not found the additional defendant guilty of concurrent negligence, the original defendants would, under the stipulation, have been entitled to credit, in the court's discretion, for the amount voluntarily paid by the additional defendant's insurance carrier. However, the jury returned a verdict for $6,000 in favor of the plaintiff, and also found that the negligence of the original defendants and the negligence of the additional defendant jointly and concurrently caused the plaintiff's injuries and damage.

Liability for contribution under G.S. § 1-240 does not contemplate that one brought in as an additional defendant shall pay more than her pro rata part of any verdict rendered against the original defendants. We do not think the stipulation that the court, in its discretion, might deduct the sum of $688.73 from any verdict the plaintiff might recover against the original defendants, militates against the right of the additional defendant to have the entire amount of $688.73 credited on her half of the verdict as rendered by the jury.

Under the judgment as signed below it is contemplated that the original defendants will be required to pay only $2,655.63 in settlement of their liability of at least $3,000 under the verdict. On the other hand, the judgment as entered would require the additional defendant and her insurance carrier to pay $3,344.37 in settlement of a claim that has been litigated and for which her liability under G.S. § 1-240 in no event may exceed $3,000. Certainly, the medical bills involved were paid for and on behalf of the additional defendant, and we think that she is entitled to full credit therefor on any judgment for contribution that may hereafter be rendered against her. This view is consonant with law and equity within the purview of G.S. § 1-240. Scales v. Scales, 218 N.C. 553, 11 S.E.2d 569.

New trial.