Mayberry v. Charlotte City Coach Lines, Inc.

131 S.E.2d 671 (1963)

260 N.C. 126

Floyd L. MAYBERRY, Trustee of John Franklin Mayberry, Incompetent, Plaintiff, v. CHARLOTTE CITY COACH LINES, INC., a corporation, Wayne Heath Thomas and Preston Douglas Grier, Jr., Defendants.

No. 258.

Supreme Court of North Carolina.

July 19, 1963.

*674 Bradley, Gebhardt, DeLaney & Millette by Ernest S. DeLaney, Jr., Charlotte, for plaintiff appellant.

Lassiter, Moore & Van Allen, by James O. Moore and John T. Allred, Charlotte, for defendant appellees.

PER CURIAM.

The actionable negligence of the defendant Grier is established by his own testimony with absolute finality. As to the defendant Thomas, the question was whether his failure to observe Grier's approach constituted negligence which was a proximate cause of the collision producing plaintiff's injuries. The answer depends upon whether, in the exercise of a proper lookout as he entered the intersection, what he could or should have seen would have *675 been sufficient to put him on notice, in time to have avoided the accident, that Grier did not mean to stop in obedience to the flashing red light. Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452. The Court fully charged the jury that Thomas was under the duty to keep a lookout commensurate with the dangers created by the weather and the obstructed view to his left, and that he was not relieved of this duty by the presence of a flashing red light on Fourth Street. He further instructed the jury:

"If the defendant Thomas saw or in the exercise of due care in keeping a proper lookout should have seen the defendant Grier's vehicle travelling on Fourth Street and approaching the intersection at such a rate of speed or under such other circumstances that the defendant Thomas, in the exercise of ordinary care, knew or should have known that the defendant Grier could not, or would not stop, for the blinking red light, then the defendant Thomas was required to reduce his speed, stop if necessary, and use all precautions reasonably at his command to avoid collision."

Considered contextually, we are of the opinion that the entire charge fairly presented the case to the jury and that the jurors must have understood the issue of fact and the law which applied to it. After hearing all the evidence, the jury reached the conclusion that no negligence on the part of the Bus Company's driver contributed to this accident and its tragic consequences. The burden is on the appellant not only to show error but to show that if the error had not occurred there is a reasonable probability that the result of the trial would have been favorable to him. Stathopoulos v. Shook, supra. The jury having reached the decision it did on the evidence in this case, we find nothing in the record to suggest that the result would be different on another trial.

No error.