Webb v. . Hutchins

BaRkthill, J. Tbe plaintiffs assign as error tbe refusal of tbe court below to permit tbeir witness, a patrolman wbo was not present at tbe time of tbe accident, to give bis opinion of tbe speed of defendant’s car. Tbe assignment is without merit. Tyndall v. Hines Co., 226 N. C., 620. Tbe court instructed tbe jury in part as follows: “In tbis case, gentlemen of tbe jury, tbe defendant Hutcbins, as be drove along tbis highway and as be saw these lights, tbe law says be bad tbe right to assume that that car was in motion and it was on its right side of tbe road. Any motorist traveling tbe highways of North Carolina has tbe right .to assume that tbe man be is meeting, or that tbe man passing him, is going to drive bis car in a careful and prudent manner and to follow tbe rules of tbe road, as any prudent man would do in driving a motor vehicle on tbe highways of tbe State of North Carolina.” Thus tbe court stated, in effect, that even though tbe Crow car was standing on its left, and defendant’s right, band side of tbe road, completely off tbe bard surface or traveled portion of tbe highway, with its lights focused across tbe field and not down tbe road, defendant bad a right to assume it was in motion on its-right band side of tbe road. In tbis there was error prejudicial to tbe plaintiffs. In undertaking to sustain tbis charge tbe defendant relies on a statement in 5 A. J., 752, as follows: “It has also been held, in tbis connection, that a driver of an automobile on a public highway at night, wbo sees in front of him tbe headlights of another car facing him, has a right to assume to a reasonable extent that such ear is in motion and will be operated in conformity with tbe law of tbe road; be cannot be charged with contributory negligence as a matter of law in failing to stop or to discover that the other car is stalled.” Tbis statement is bottomed on tbe decision in Whitworth v. Riley, 269 P. 350 (Okla.), 59 A. L. R., 584. It was there held that where a motorist stops bis car, in the nighttime, on his left of tbe center of a highway with its headlights on and leaves it thus standing without taking any precaution to indicate to drivers going in the opposite direction, by a proper signal or warning, that bis ear is in a dangerous position, and that oncoming drivers cannot pass to their right, and that a clear passageway is available to tbeir left of the center of tbe highway, is guilty of negligence and tbe oncoming motorist has a right to assume, in tbe absence of such warning, from tbe fact that tbe headlights are on, that tbe stalled-ear is in motion and will be operated in conformity with tbe law. *4 Tbis rule bas not been adopted in tbis jurisdiction. Even if we concede that in a proper case it would be followed here, it bas no application to tbe facts in tbis case as they appear in tbis record. There, tbe defendant’s car was standing on tbe traveled portion of tbe highway, in tbe line of travel of oncoming cars, so that an approaching motorist continuing on bis right band side of tbe road would probably collide therewith. Here, tbe Crow car was completely off tbe bard surface and tbe defendant, bad be proceeded on bis right'side thereof, could have passed in safety. Indeed, tbe uneontradicted evidence tends to show that a number of other ears did so pass. Furthermore, that rule was applied in an action between tbe two motorists. Here tbe plaintiffs were bystanders who may not be held responsible for any contributory negligence of Crow. Even if applicable to him, tbe doctrine of concurring negligence would be controlling here. A motorist who is operating bis vehicle on, or who seasonably turns to, his right of tbe center of tbe road when meeting an oncoming car, as required by Gr. S., 20-148, has a right to assume that tbe other driver will likewise turn to bis right so that tbe two vehicles may pass each other in safety. Brown v. Products Co., 222 N. C., 626, 24 S. E. (2d), 334; Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; Hoke v. Greyhound Corp., 227 N. C., 412. Even so, one who operates a motor vehicle upon a public highway is under tbe duty to ascertain bis own position on tbe highway from bis own observation. Tbe rule does not justify an assumption on bis part, from tbe fact tbe other ear is apparently to bis right, that be himself must be on bis left side of tbe road, and does not excuse bis conduct in turning completely off tbe highway. It merely bolds him guiltless if be fails to stop or turn off onto tbe dirt shoulder of tbe road, but continues at a reasonable rate of speed in bis line- of travel. There is no statute or rule in tbis State which prohibited tbe parking of Crow’s automobile on its left side of tbe highway, completely off tbe traveled portion thereof. If its lights were focused down tbe highway and were so bright they blinded tbe defendant, be may be guilty of an act of negligence, but, as to these plaintiffs, tbis would not exculpate tbe defendant for bis negligence, if any, unless it was tbe sole proximate cause of tbe resulting injury to plaintiffs. Tbis is a question for tbe jury. Tbe indicated error in the charge entitles plaintiffs to a New trial.