Hout v. Harvell

154 S.E.2d 41 (1967)

270 N.C. 274

Mary Providence HOUT, Plaintiff, v. John Henry HARVELL, Jr., Nina Smith Harvell, and Aubrey Ignatius Hout, Defendants.

No. 607.

Supreme Court of North Carolina.

May 3, 1967.

*42 Ottway Burton, Asheboro, for plaintiff appellant.

Miller, Beck & O'Briant, Asheboro, for defendants, Harvell, defendant appellees.

SHARP, Justice.

Under the circumstances detailed in the complaint, irrespective of her speed or failure to keep a proper lookout, Mrs. Harvell could not have avoided a collision with the Hout vehicle. As to defendant Hout, defendants Harvell, and plaintiffa passenger in the Hout automobilethe conduct of Mrs. Harvell may not be held to constitute one of the proximate causes of the collision. The conduct of defendant Hout made the collision inevitable, insulated any prior negligence of Mrs. Harvell, and constituted the sole proximate cause of the collision.

The preceding paragraph is a paraphrase of the statement contained in Loving v. Whitton, 241 N.C. 273, 276, 84 S.E.2d 919, 922, which involved an analogous situation. That case, and the cases cited therein, control decision here. In Loving v. Whitton, this Court sustained a demurrer ore tenus to a complaint containing substantially the same allegations as the one we consider here. The plaintiff in Loving, a passenger in Whitton's Cadillac, was injured when it collided in an intersection with an automobile operated by Gibson. Plaintiff alleged that Whitton, traveling on a servient street, failed to stop in obedience to the stop sign and "`carelessly and negligently drove said Cadillac automobile in front of and into the path of the automobile driven by the defendant Gibson' `so that there occurred a collision between said two automobiles.'" Id. at 275, 84 S.E.2d at 921. Plaintiff further alleged that Gibson's negligence was one of the proximate causes of the collision in that he drove his automobile in a careless and reckless manner, failed to keep it under control, failed to maintain a proper lookout, exceeded the speed limit, and failed to warn of his approach to the intersection.

In sustaining Gibson's demurrer, the Court pointed out that there was no allegation that Gibson, in the exercise of due care, could and should have timely observed that Whitton did not intend to stop and yield the right-of-way. In the absence of such circumstances, Gibson had the right to assume that he would obey the law.

Here, there is likewise no allegation of any fact or circumstance sufficient to give Mrs. Harvell timely notice that Hout intended to make a left turn directly in front of her in order to enter a filling station on his left side of the highway. On the contrary, she alleges that he turned without giving "a proper legal signal." Defendants Harvells' demurrer was properly sustained. Capps v. Smith, 263 N.C. 120, 139 S.E.2d 19; Loving v. Whitton, supra; Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808. See also Shives v. Sample, 238 N.C. 724, 79 S.E.2d 193. The ruling of the court below was made without prejudice to plaintiff's right to move for leave to amend her complaint. Should she fail to obtain such leave within the time allowed by G.S. § 1-131, defendants Harvell will be entitled to a judgment dismissing the action.

Affirmed.