Johnson v. Bass

125 S.E.2d 19 (1962)

256 N.C. 716

Daisy Lee JOHNSON v. William T. BASS, III, a minor, appearing herein by his guardian ad litem Robert G. Webb; William T. Bass, Jr.; Vernon Hughes Clifton, and Walter Harry Burgess. Mildred JOHNSON, a minor, appearing herein by her next friend Daisy Lee Johnson v. William T. BASS, III, a minor, appearing herein by his guardian ad litem Robert G. Webb; William T. Bass, Jr.; Vernon Hughes Clifton, and Walter Harry Burgess.

No. 236.

Supreme Court of North Carolina.

April 18, 1962.

*21 Finch, Narron, Holdford & Holdford, Wilson, for plaintiffs.

Ruark, Young, Moore & Henderson, Raleigh, Gardner, Connor & Lee, Wilson, for original defendants.

Lucas, Rand & Rose, Wilson, for additional defendants.

DENNY, Chief Justice.

The appellants assign as error the granting of the motion for judgment as of nonsuit made by additional defendants Clifton and Burgess.

In our opinion, the evidence in this case, taken in the light most favorable to the original defendants, is sufficient to go to the jury on the question of the joint and concurrent negligence of the original and the additional defendants. Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373, and cited cases. See also Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450, and King v. Powell, 252 N.C. 506, 114 S.E.2d 265.

This assignment of error is sustained and the judgment as of nonsuit as to the additional defendants is reversed.

Appellants' assignment of error No. 29 is to the following portion of his Honor's charge to the jury with respect to the provisions of G.S. § 20-158(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 *22 highways signs notifying drivers of vehicles to come to a 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. * * * And the court instructs you that the violation of that statute is negligence per se, as the court has previously instructed you." (Emphasis added)

The court, however, did not read to the jury the remainder of the provisions of G.S. § 20-158(a) which reads as follows: "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 other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence."

The italicized portion of the above statute which was read to the jury was inserted therein by Chapter 913 of the 1955 North Carolina Session Laws.

The appellees contend that the statute as now written does not make a failure to stop at a stop sign negligence per se, but that a failure to yield the right of way to vehicles operating on the main traveled or through highway and approaching said intersection is negligence per se.

Chapter 295 of the 1955 North Carolina Session Laws, now codified as G.S. § 20-158.1, provides as follows: "The State Highway and Public Works Commission, with reference to State highways, and cities and towns with reference to highways and streets under their jurisdiction, are authorized to designate main traveled or through highways and streets by erecting at the entrance thereto from intersecting highways or streets, signs notifying drivers of vehicles to yield the right-of-way to drivers of vehicles approaching the intersection on the main traveled or through highway. Notwithstanding any other provisions of this Chapter, except Section 20-156, whenever any such yield right-of-way signs have been so erected, it shall be unlawful for the driver of any vehicle to enter or cross such main traveled or through highway or street unless he shall first slow down and yield the right-of-way to any vehicle in movement on the main traveled or through highway or street which is approaching so as to arrive at the intersection at approximately the same time as the vehicle entering the main traveled or through highway or street. No failure to so yield the right-of-way shall be considered negligence or contributory negligence per se in any action at law for injury to person or property, but the facts relating to such failure to yield the right-of-way may be considered with the other facts in the case in determining whether either party in such action was guilty of negligence or contributory negligence. * * *"

In view of the statutory provisions set out herein and the decisions of this Court, we hold that the failure to stop at a stop sign and yield the right of way is not negligence per se, but it is evidence of negligence that may be considered with other facts in the case in determining whether a party thereto was guilty of negligence or contributory negligence. Wooten v. Russell, 255 N.C. 699, 122 S.E.2d 603; Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429; Primm v. King, 249 N.C. 228, 106 S.E.2d 223; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658; Lee v. Robertson Chemical Corp., 229 N.C. 447, 50 S.E.2d 181; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539.

It is well to note that the intersection involved in the instant case was a single intersection, the median strip or area between the north and southbound lanes *23 being only 36 inches wide and not 30 feet wide as was the case in Hudson v. Petroleum Transit Co., 250 N.C. 435, 108 S.E.2d 900, in which case we held there were two intersections. The defendant William T. Bass, III, the driver of the Chevrolet truck, entered the intersection when the driver of the tractor-trailer was approximately one block south of the intersection. Furthermore, according to the testimony of the driver of the tractor-trailer, the Bass truck was crossing the median strip about the time he approached the intersection. Therefore, there seems to be no dispute about the fact that the Bass truck entered the intersection first and crossed at least four of the six lanes and the median strip before the collision occurred.

Moreover, as stated in the case of Blalock v. Hart, supra, "* * * (T)he driver on a favored highway protected by a statutory stop sign * * * 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 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. * * *"

In our opinion, the defendants Bass are entitled to a new trial, and it is so ordered.

Since there must be a new trial for the reasons pointed out herein, it is not necessary to consider or discuss the remaining assignments of error.

The defendants Bass have not brought forward and discussed their assignment of error to the failure of the court below to sustain their motion for judgment as of nonsuit made at the close of all the evidence; hence, it will be deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. at page 810. Even so, we concur in the ruling of the court below on such motion.

New trial.

SHARP, J., took no part in the consideration or decision of this case.