Day v. Davis

151 S.E.2d 556 (1966)

268 N.C. 643

Eddie F. DAY v. Patricia Ann DAVIS, a Minor, and William B. Davis.

No. 364.

Supreme Court of North Carolina.

December 14, 1966.

*558 Sasser & Duke and Herbert B. Hulse, Goldsboro, for plaintiff-appellant.

Dees, Dees, Smith & Powell, Goldsboro, for defendant-appellees.

BRANCH, Justice.

Plaintiff challenges the trial judge's instructions in that he failed to properly relate the doctrine of sudden emergency to the issue of contributory negligence. First, we must determine if plaintiff was entitled to any instructions on the doctrine.

This Court, considering this doctrine in the case of Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710, stated: "`One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.' * * * True, one cannot escape liability for acts otherwise negligent because done under the stress of an emergency if such emergency was caused, wholly or in material part, by his own negligent or wrongful act."

There is a lack of evidence or conflicting evidence regarding all the allegations of contributory negligence except as to the alleged violation of G.S. § 20-141 (c), which provides in part as follows: "The *559 fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * * or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care." There is a line of cases in North Carolina holding that the violation of G.S. § 20-141 (c) constitutes negligence per se. However, these cases hold further that in order for there to be actionable negligence such violation must be a proximate cause of the injury in suit, including the essential element of foreseeability. Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273.

It is also well-established law in North Carolina that the driver of a vehicle on a dominant highway is not under duty to anticipate that a driver on a servient highway will fail to stop as required by statute before entering the intersection, and, in the absence of anything which gives notice to the contrary, may assume and act on the assumption, even to the last moment, that the operator along the servient highway will stop in obedience to the statute, and will not enter the intersection until he ascertains, in the exercise of due care, that he can do so with reasonable assurance of safety. Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17.

The duty of the plaintiff to decrease his speed was governed by the duty of all persons to use "due care," and is tested by the usual legal requirements and standards such as proximate cause. In order for there to be any legal significance in a civil action for violation of the statutes, it must be shown that the violation proximately caused the injury. Cassetta v. Compton, 256 N.C. 71, 123 S.E.2d 222.

We would not be constrained to say that the failure of the plaintiff to decrease his speed as he approached or entered the intersection, standing alone, would preclude him from the benefits of the instruction on sudden emergency. Certainly, if plaintiff had approached the intersection at ten miles per hour, he would not have per se, wholly, or in material part, caused the emergency because he failed to reduce his speed. Thus, whether plaintiff had the right to assume that the defendant would not enter the intersection until she could safely do so, and whether plaintiff's failure to decrease his speed upon approaching or entering the intersection, constituted negligence, are questions of fact to be determined by the jury.

Considering the evidence in the light most favorable to the plaintiff, which we must do, Hunt v. Carolina Truck Supplies, 266 N.C. 314, 146 S.E.2d 84, we hold that all of the evidence does not show that the plaintiff by his negligence brought about or contributed to the emergency. These matters are for jury determination under proper instructions, applying the doctrine of sudden emergency. Hence, it becomes necessary to determine if the trial judge properly related his instructions as to sudden emergency to the second issue.

The court made no reference to the doctrine of sudden emergency while instructing on the second issue (contributory negligence). While charging on the first issue, the court made the general statement: "Now, further, with respect to the general propositions of law the court further wishes to tell you that the law goes further with respect to this and you will also consider what I am about to tell you later on with regard to the second issue, which is contributory negligence; but what I am going to tell you now you *560 will consider in respect to this issue and you will also consider it with respect to the second issue." After making this statement, the judge charged on several other matters before he mentioned the doctrine of sudden emergency in his charge on the first issue. Later, while charging on contributory negligence, he instructed the jury to answer the second issue "Yes" if they found, inter alia, that plaintiff was negligent in that he failed to keep a proper lookout or that he failed to keep his automobile under proper control, or that he operated his automobile at a greater rate of speed than allowed by law, or he operated his motor vehicle at a greater rate of speed than was reasonably prudent under existing conditions, considering any special hazards that may have existed at the time in question, and particularly in regard to an intersection.

In the recent case of Hunt v. Carolina Truck Supplies, supra, this Court held that although it is well established that a charge must be considered and interpreted contextually, the failure to relate defendant's plea of sudden emergency and the evidence pertinent thereto to the proper issue was erroneous and prejudicial, and was not cured by a later general instruction on the doctrine of sudden emergency not related to the particular issue.

In the instant case the instructions given on the first issue as to the doctrine of sudden emergency were not clearly related to the second issue (contributory negligence). Therefore, we cannot assume that the jury understood that the explicit instructions to answer the second issue "Yes" would be in any way altered by the previous instructions on the doctrine of sudden emergency. The trial judge failed to properly relate the doctrine of sudden emergency to the issue of contributory negligence.

For reasons stated, plaintiff is entitled to a

New Trial.