Childers v. Seay

155 S.E.2d 259 (1967)

270 N.C. 721

Elizabeth Ann CHILDERS v. William Jesse SEAY, Jr. and Truman Childers.

No. 284.

Supreme Court of North Carolina.

June 20, 1967.

*261 Bradley, Gebhardt, DeLaney & Millette, by S. M. Millette, Charlotte, for plaintiff appellant and appellee.

Jones, Hewson & Woolard, Charlotte, for defendant Seay, appellee.

Kennedy, Covington, Lobdell & Hickman, by Hugh L. Lobdell and Charles V. Tompkins, Jr., Charlotte, for defendant Childers, appellant.

PARKER, Chief Justice.

APPEAL BY DEFENDANT CHILDERS

Defendant Childers assigns as error failure of the court to grant his motion for judgment of compulsory nonsuit; error in the charge on the first issue with respect to negligence of defendant Seay; and failure of the court to charge the jury on the second issue involving the alleged negligence of Childers with respect to the doctrine of insulating negligence.

Childers' motion for judgment of compulsory nonsuit was properly overruled. There was ample evidence of negligence on the part of defendant Childers to go to the jury. Defendant Childers' own evidence indicates that he drove past a sign indicating an intersection ahead and advising a reduced speed; that he proceeded at the same rate of speed; that he saw defendant Seay's station wagon when there was approximately 150 feet between them; that he applied his brakes and skidded 40 or 50 feet before hitting the station wagon. The purpose of the advisory signs was to warn passing motorists that there was an intersection ahead and that motorists should observe a speed limit of 35 miles per hour. They put the motorist on notice that there might be conditions ahead, such as traffic in the intersection, which require increased caution. The warning signs and inclement weather were sufficient to enable a reasonable person to foresee that his failure to heed the warning and proceed with increased caution might produce the result which actually ensued here, or some similar result. There was also evidence for plaintiff that Childers said to a State Highway Patrolman that he was right on Mr. Seay's car when he first saw it. Highway Patrolman Peacock also testified as a witness for *262 the State: "Approaching this particular intersection that we are talking about from the north going in a southerly direction, the farthest distance north from the intersection that a driver would be when he could see another vehicle in the intersection would be about 350 feet."

This Court said in Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939:

"The test of whether the negligent conduct of one tort-feasor is to be insulated as a matter of law by the independent act of another, is well settled by our decisions. In Harton v. Forest City Telephone Co., 141 N.C. 455, 54 S.E. 299, 302, the Court said: `* * * the test * * is whether the intervening act and the resultant injury is one that the author of the primary negligence could have reasonably foreseen and expected * * *. We think it the more correct rule that, except in cases so clear that there can be no two opinions among men of fair minds, the question should be left to the jury to determine whether the intervening act and the resultant injury were such that the author of the original wrong could reasonably have expected them to occur as a result of his own negligent act. * * *'"

This principle was quoted and applied in Davis v. Jessup and Carroll v. Jessup, 257 N.C. 215, 125 S.E.2d 440. In Jernigan v. Jernigan, 236 N.C. 430, 72 S.E.2d 912, the facts were similar to the facts of this case except for an increased distance between the two automoblies. The Court held that the evidence did not compel the single conclusion that negligence of the turning driver was the sole proximate cause of the accident. The language used in Rouse v. Jones, 254 N.C. 575, 119 S.E.2d 628, might be applicable here. The rule there suggested was, if the injurious result was not reasonably unforeseeable, the subsequent negligence would not insulate the initial negligence.

The assignment of error to the court's charge on the first issue relating to negligence of defendant Seay is overruled. In Coburn v. Timber Corporation, 260 N.C. 173, 132 S.E.2d 340, the Court said: "The right to appeal is limited to a party aggrieved. G.S. § 1-271. A party is aggrieved if his rights are substantially affected by judicial order. G.S. § 1-277. If the order complained of does not adversely affect the substantial rights of appellant, the appeal will be dismissed." Defendant Childers was aggrieved by the verdict rendered and judgment entered against him. However, if error be conceded in the charge on the first issue as to negligence of defendant Seay, it did not adversely affect defendant Childers' substantial rights. In response to a similar contention where one defendant complained of error in the charge relating to the other defendant's negligence, the Court said in Taylor v. Rierson, 210 N.C. 185, 185 S.E. 627: "* * * (I)t relates solely to the first issue, and could in no way affect the interest of the appellant Taylor, whose contentions were presented under the second and third issues."

Construing the amended complaint, upon which the case was tried, liberally, with a view to substantial justice between the parties, G.S. § 1-151, it appears that plaintiff has alleged a cause of action against the defendant Seay and against the defendant Childers, and neither defendant could set up in this action a plea for contribution against his co-defendant. Streater v. Marks, 267 N.C. 32, 147 S.E.2d 529; Greene v. Laboratories, Inc., 254 N.C. 680, 120 S.E.2d 82. In fact, neither defendant in his answer set up a plea for contribution against his co-defendant. In this action, each was an adverse party to the plaintiff, only. They were not adversaries inter se, and could not litigate their differences inter se. As between them, the judgment is not conclusive. Upon paying the judgment, defendant Childers may maintain an action against defendant Seay for contribution. Streater v. Marks, supra; Godfrey v. Tidewater *263 Power Co., 223 N.C. 647, 27 S.E.2d 736, 149 A.L.R. 1183.

The third assignment of error is likewise overruled. The doctrine of insulating negligence is an elaboration of a phase of proximate cause. Where proper instructions on proximate cause are given, the court is under no duty to instruct the jury specifically with respect to insulating negligence in the absence of proper request, and no such request was made by defendant Childers here. Rouse v. Jones, supra; Whiteman v. Seashore Transportation Co., 231 N.C. 701, 58 S.E.2d 752.

PLAINTIFF'S APPEAL

Plaintiff stated in her brief: "This appeal by the plaintiff is a precautionary measure only. Should this Court decide that no prejudicial error was committed in the trial against the defendant Childers, then the plaintiff withdraws her appeal and respectively requests this Court to treat her appeal as withdrawn." Her request is allowed.

On defendant Childers' appeal,

No error.

On plaintiff's appeal,

Appeal dismissed.