Annotate this Case

108 S.E.2d 900 (1959)

250 N.C. 435

Annie W. HUDSON v. PETROLEUM TRANSIT COMPANY, Inc., Charles Thomas Minton and Claude Hudson Miller.

No. 452.

Supreme Court of North Carolina.

June 12, 1959.

*906 Coble Funderburk, Monroe, for plaintiff-appellant.

E. Osborne Ayscue, Monroe, for defendants Transit Co. and Minton, appellees.

WINBORNE, Chief Justice.

As stated in brief of plaintiff appellant the only question involved on this appeal is whether or not the judge holding the court committed error by granting the defendants' motion for judgment as of nonsuit at the end of the plaintiff's evidence.

In this connection this Court held in Williams v. Sossoman's Funeral Home, 248 N.C. 524, 103 S.E.2d 714, in opinion by Rodman, J., that: "Where a collision occurs at an intersection controlled by a traffic light within a municipality so that G.S. § 20-158(c) is inapplicable, and the municipal ordinance is not introduced in evidence, the rights of the parties will be determined upon the basis that motorists must give the lights their well-recognized meaning and give that obedience to them which a reasonably prudent operator would give." Such is the situation in the case in hand. The collision here involved occurred at an intersection controlled by traffic lights within the town of Monroe so that the provisions of G.S. § 20-158(c) are inapplicable and the municipal ordinance is not introduced in evidence. Therefore the rights of the parties will be determined upon the basis that motorists must give the lights their well-recognized meaning and give that obedience to them which a reasonably prudent operator would give.

Bearing in mind the location of the signal lights as hereinabove described in detail, the operator of the Ford automobile traveling west, desiring to turn left when he came to the red light, at the intersection of the two highways, was permitted to do so, when the traffic light changed to green, but in that event he was required (1) to approach such intersection in the lane for the traffic to the right of and nearest to the center of Highway No. 74, and (2) in turning to pass beyond the center of the intersection,passing as closely as practicable to the right thereof before turning such vehicle to the left. G.S. § 20-153(a). Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849. Then his vehicle, the Ford, was in no-man's land of the light area, so to speak, subject to control of no signal light, but charged with the duty to yield the right of way to vehicles moving in eastbound traffic on Highway No. 74that is, traffic approaching the intersection from his right at approximately the same time. G.S. § 20-155.

Then what is the duty of the operator of the truck of defendant Transit Company, driven by defendant Minton, moving in eastbound traffic on the south lane of such traffic, with respect to the duty of the operator of the Ford automobile? It seems clear that he would be privileged to move forward only when facing a green light over his lane. And upon the signal turning green, he was warranted in entering the intersection and, in the absence of anything which gives or should give him notice to the contrary, he was not under duty to anticipate that a motorist approaching along the intersecting highway from the left would fail to yield the right of way as required by G.S. § 20-155. Hyder v. Asheville Storage Battery Co., 242 N.C. 553, 89 S.E.2d 124.

*907 Is there evidence sufficient in support of the charge of speeding to take the case to the jury on the first issue? While plaintiff alleges in her complaint that the truck of Transit Company was being operated in a fast, reckless and dangerous manner at an unlawful speed of 65 miles per hour, she testified that the truck was traveling around 65 to 75 miles per hour because she "couldn't see nothing but the light when I saw it."

Bearing in mind that the truck was coming toward her, and that it was in the nighttime, the suggested speed of 65 to 75 miles per hour would seem to be guesswork and contrary to human experience and without probative value. Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337.

Moreover, the physical facts refute the charge of recklessness on the part of the driver of the truck.

Indeed, the testimony of the witness Penegar is to the effect that as the truck was coming up it was coming on the right side, at a good rate of speed, about 45 (the lawful rate for a truck at the time and place) and started slowing down, and when the stop light turned to "Go", the operator increased its speed and went on through and there was a crash. And the witness testified that the truck was about two car lengths, 100 feet at most, from the intersection when the light turned green, and that he did not see the other car before the collision, and that the collision occurred in the middle of the intersection.

Is there evidence shown in the case on appeal sufficient in probative value to support the charge of negligence as against defendants Transit Company and Minton to take the case to the jury? In this connection, the principle prevails in this State that what is negligence is a question of law, and when the facts are admitted or established, the court must say whether it does or does not exist. "This rule extends and applies not only to the question of negligent breach of duty, but also the feature of proximate cause," Hoke, J., in Hicks v. Naomi Falls Mfg. Co., 138 N.C. 319, 50 S.E. 703, 705. Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, and cases cited.

Furthermore, it is proper in negligence cases to sustain a demurrer to the evidence and enter judgment as of nonsuit: "1. When all the evidence taken in the light most favorable to the plaintiff fails to show any actionable negligence on the part of the defendant * * * 2. When it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect, or default of an outside agency or responsible third person." Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, and Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808.

Finally, if it be conceded that there is evidence tending to show that the speed of the truck was excessive and, therefore, prima facie unlawful, it is manifest from the evidence that its speed would have resulted in no injury but for the negligent act of the operator of the Ford automobile. Hence the proximate cause of the collision must be attributed to the gross and palpable negligence of the operator of the Ford as it appears from the testimony of the plaintiff, as in Butner v. Spease, supra.

It is worthy of note that the Act of the General Assembly amending subsection (l) of G.S. § 20-38 defining the word "intersection" did not become effective until after July 1st, 1957, just 8 days after the collision in the instant case took place.

The judgment below is