Jackson v. . Browning

Sea well, J. Tbe appeal presents tbe two frequently recurring questions : (1) Upon tbe whole evidence, taken in its most favorable light for tbe plaintiff, is there any reasonable inference of defendant’s proximately causative negligence? G. S., 1-183 (C. S., 567), and annotations; Lincoln v. R. R., infra. (2) Is there, in plaintiff’s own evidence, such a clear inference of contributory negligence that reasonable minds could not come to a contrary conclusion? Lincoln v. R. R., 207 N. C., 787, 178 S. E., 601; Mulford v. Hotel Co., 213 N. C., 603, 197 S. E., 169; Pearson v. Stores Corp., 219 N. C., 717, 721, 14 S. E. (2d), 811. Tbe evidence does not require extensive analysis for tbe purpose of this decision. As to tbe alleged negligence of tbe driver of tbe Browning truck, it is open to tbe inference, of whatever potency tbe jury alone may say, that *78 Taper, tie driver of that truck, aware both of the obstruction in his own path and the approach of the Jackson truck, miscalculated both time and distance in his attempt to pass the car parked in his line of travel, took a chance inconsistent with the exercise of reasonable prudence under the existing conditions, and lost the wager. The obstruction was in his own line of travel, and while he undoubtedly had the right to use the unobstructed part of the highway for the purpose of passing it, he could do so only while in the exercise of due care respecting oncoming traffic in the other line, which, nothing else appearing, would have the right of way; or, in other words, both in the timing and manner of executing the movement, he must observe the rule of the prudent man so as reasonably to avoid injury to the southbound truck or its occupants. Under the evidence, whether he did so was a question for the jury. As to the contributory negligence of the driver of the Jackson truck, while the evidence is to the effect that the driver of either‘truck might have seen the other truck at a considerable distance either way, there is no evidence that Lane observed, or had any reason to observe, anything connected with the Browning truck that would have put him on notice that the latter intended to try the hazardous operation of passing the parked car first, and would in doing so cut out and into the traffic lane occupied by the Jackson truck. We are not advised — neither was the court below informed — what was the exact relative distances the trucks'were from the obstruction when the driver of the Browning truck turned to his left into the lane of the Jackson truck. This might make some difference. But the want of information cannot be replaced by assumption to the disadvantage of the plaintiff on such an issue. As the evidence stands, there is a permissible inference that the turn was made at a somewhat more critical stage of the transaction- — in close proximity to the obstruction and the oncoming truck, thus greatly restricting the range of opportunity on the part of the driver of the Jackson truck, and rendering more or less academic many of the “musts” which might otherwise apply. “Right-of-way” is not an absolute right. It is only relative. It loses its potency as a defense in the face of a superior obligation of duty which not infrequently arises with respect to the use of a part of a highway ordinarily assigned to particular traffic, when its use must be qualified by reasonable prudence in order to avoid injury to other travelers or other persons, and even to oneself. Sometimes stubborn adherence to the supposed right would ill accord with the conduct of a prudent man. Nevertheless, as a rule of the road, or as a rule of the law, it is a practical protection of the highest value to those using the highway; and when we come to consider the mutual obligations and duties of persons confronted with a common danger on the highway, stemming out of their immediate conduct or the conduct of one of them, “right-of-way” is a *79 substantial consideration and has an important legal bearing upon the question of negligence — particularly the question of when and under what circumstances the rule of the prudent man dictates that one in possession of such right should take notice that his right of way is challenged or his side of the road is about to be made use of by another and the common use attended with peril. The case at bar is full of these potentialities; but the evidence does not clearly indicate the extent of the notice given to the driver of the Jackson truck of the intention to use his lane of travel, nor does it induce a clear and unequivocal impression of his contributory negligence as a matter of law. On this record, we think the evidence should have been submitted to the jury. The judgment to the contrary is ■ Reversed.