Badders v. Lassiter

WiNBORNE, J. The determinative question here is whether or not the trial court erred in denying defendant’s motions for judgment as of non-suit, and this question is determinable by the answer to another question as to whether or not the evidence offered by the plaintiff upon the trial below shows, as a matter of law, that, at the time and place of the collision here involved, plaintiff’s wife was contribuíorily negligent in the operation of plaintiff’s family-purpose automobile. Conceding that the evidence offered upon the trial in Superior Court, as shown in the case on appeal, pertaining to the issue as to negligence of defendant, is sufficient to take the case to the jury, Johnson v. Bell, 234 N.C. 522, 67 S.E. 2d 658, this Court is constrained to hold that the uncon-tradieted testimony of plaintiff’s wife, as witness for him, leads inevitably to the conclusion that she was negligent in the operation of plaintiff’s family-purpose automobile, and that such negligence was at least a contributing cause of the collision. G.S. 20-158 (a), Matheny v. Motor Lines, 233 N.C. 673, 65 S.E. 2d 361. Plaintiff’s negligence need not be the sole proximate cause of the injury to bar recovery. It is enough if it contribute to the injury as a proximate cause, or one of them. Marshall v. R. R., 233 N.C. 38, 62 S.E. 2d 489. The statute, G.S. 20-158, declared that (a) The State Highway and Public Works Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, and that wherever any such sign has been so erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. And the same section of the statute also declares that “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 the other facts in the case in determining whether plaintiff in such action was guilty of contributory negligence.” Johnson v. Bell, supra. See also Sebastian v. Motor Lines, 213 N.C. 770, 197 S.E. 539; Reeves v. Staley, 220 N.C. 573, 18 S.E. 2d 239; Hill v. Lopez, 228 N.C. 433, 45 S.E. 2d 539; Nichols v. *418 Goldston, 228 N.C. 514, 46 S.E. 2d 320; Lee v. Chemical Corp., 229 N.C. 447, 50 S.E. 2d 181. “The purpose of highway stop signs,” as stated by this Court in opinion by Devin, J., later G. J., in the Matheny case, supra, “is to enable the driver of a motor vehicle to have opportunity to observe the traffic conditions on the highways and to determine when in the exercise of due care he might enter upon the intersecting.highway with reasonable assurance of safety to himself and others . . . And the statute G.S. 20-154 also requires that before starting from a stopped position and moving into the ■line of traffic the driver shall first see that such movement can be made in safety.” And in the Matheny case the Court went on to say that “Since at the intersection described in the case at bar the driver of an automobile approaching the intersection from the north was required (G.S. 20-158) to bring his automobile to a complete stop, the right of way, or rather the right to move forward into the intersection would depend upon the presence and movement of vehicles on the highway which he intended to cross. The rule as to right of way prescribed by G.S. 20-155 applies to moving vehicles approaching an intersection at approximately the same time . . . Where the driver has already brought his automobile to a complete stop, thereafter the duty would devolve upon him to exercise due care to observe approaching vehicles and to govern his conduct accordingly. One who is required to stop before entering a highway should not proceed, with oncoming vehicles in view, until in the exercise of due care he can determine that he can do so with reasonable assurance of safety . . . Generally when the driver of an automobile is required to stop at an intersection he must yield the right of way to an automobile approaching on the intersecting highway . . ., and unless the approaching automobile is far enough away to afford reasonable ground for the belief that he can cross in safety he must delay his progress until the other vehicle has passed.” See also Cooley v. Baker, 231 N.C. 533, 58 S.E. 2d 115; S. v. Hill, 233 N.C. 61, 62 S.E. 2d 532; Hawes v. Refining Co., 236 N.C. 643, 74 S.E. 2d 23. Moreover, the Court further declared in the Matheny case that “the right of one starting from a stopped position to undertake to cross an intersection would depend largely upon the distance from the intersection of approaching vehicles and their speed, and unless under the circumstances he would reasonably apprehend no danger of collision from an approaching vehicle it would be his duty to delay his progress until the vehicle has passed.” Furthermore, it is a general rule of law that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. *419 And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. Adams v. Service Co., 237 N.C. 136, 74 S.E. 2d 332, and cases cited. And it is said in Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330, “It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel, and he is held to the duty of seeing what he ought to have seen . . .” See also Henson v. Wilson, 225 N.C. 417, 35 S.E. 2d 245. In the light of the statutes, and these principles of law, applied to the evidence in hand, these questions arise : Did plaintiff’s wife, before entering Clark Avenue, the designated highway, in the exercise of due care determine that she could do so with reasonable assurance of safety ? And did she exercise due care in the operation of the automobile in crossing the intersection? She admits that she misjudged the speed of defendant’s automobile. And she says that she stopped at the stop sign located 10 or 12 feet from the intersection; that she saw defendant’s automobile about a block away; that she then changed to low gear and went on across the street at a speed of five miles per hour; and that she did not look again to her right, and did not “hear or see anything until the impact occurred.” Manifestly, her decision to start across the intersection lacked reasonable assurance of safety, and the operation of the automobile by her in traversing the intersection without keeping a reasonably careful lookout, establishes lack of ordinary care. Hence the motion of defendant for judgment as of nonsuit should have been allowed. For defendant, by moving for judgment as of nonsuit, in effect, submitted to a voluntary nonsuit on the counterclaim set up by him. Bourne v. R. R., 224 N.C. 444, 31 S.E. 2d 382. The judgment below is Reversed. EhviN, J., dissents.