Banks v. Shepard

DeNNY, J. The appellant excepts and assigns as error the refusal of the court below to allow its motion for judgment as of nonsuit. According to the plaintiff’s testimony the appellant’s driver stopped the bus within four or five feet, after the bell rang, indicating a passenger wanted to get off the bus. The evidence also tends to show that the bus *89 was stopped on tbe bard surface or traveled portion of tbe highway and tbat tbe collision occurred witbin a matter of seconds after tbe bus stopped. Tbe mere fact tbat tbe driver of a bus stops sucb vehicle on tbe traveled portion of tbe highway, for the purpose of receiving or discharging a passenger, nothing else. appearing, will not be held to be a’violation of G.S. 20-161. Leary v. Bus Co. 220 N.C. 745, 18 S.E. 2d 426; Peoples v. Fulk, 220 N.C. 635, 18 S.E. 2d 147; Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740; Morgan v. Coach Co., 228 N.C. 280, 45 S.E. 2d 339. Even so, such stop must be made with due regard to the provisions of G.S. 20-154, the pertinent parts of which read as follows : “(a) The driver of any vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, . . . and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement, (b) The signal herein required shall be given by means of the hand and arm in the manner herein specified, or by any approved mechanical or electrical signal device, except that when a vehicle is so constructed or loaded as to prevent the hand and arm signal from being visible, both to the front and rear, the signal shall be given by a device of a type which has been approved by the department. . . . All signals to be given from left side of vehicle during last fifty feet traveled.” It was admitted in the trial below, that when the bus was stopped to discharge the passenger at the time of the collision complained of herein, no hand signal was given by the driver of the bus. It then became a pertinent question as to whether or not a proper signal was given by a mechanical or electrical signal device which had been approved by the Department of Motor Yehicles, as required by the above statute. The appellant offered in evidence Rule 34, of the Utilities Commission, describing the required lighting equipment on motor vehicles used by motor vehicle carriers, and offered evidence tending to show that the bus involved in this collision had been inspected and approved by an inspector of the Utilities Commission. It also offered in evidence its certificate of title issued by the Department of Motor Yehicles. We do not think this evidence sufficient to show compliance with the statute. Barnhill, J., in speaking for the Court in Conley v. Pearce-Young-Angel Co., supra, said: “Mere stopping on the highway is not prohibited by law, and the fact of stopping in itself does not constitute negligence. Leary v. Bus Corp., 220 N.C. 745, 18 S.E. 2d 426. It is stopping without giving a signal by hand and arm ‘or any approved mechanical or electrical signaling device’ approved by the Department *90 of Motor Vehicles whenever the operation of any other vehicle may he a¶ected hy such movement. Gr.S. 20-154.” The failure to give a signal as required by statute, before stopping a motor vehicle on a public highway, is negligence, Betchler v. Bracken, 218 N.C. 515, 11 S.E. 2d 721; and ordinarily it is for the jury to determine whether or not such negligence was the proximate cause of the injury, Holland v. Strader, 216 N.C. 436, 5 S.E. 2d 311. Mason v. Johnston, 215 N.C. 95, 1 S.E. 2d 379; Murphy v. Asheville-Knoxville Coach Co., 200 N.C. 92, 156 S.E. 550. We think the evidence adduced in the trial below, when considered in the light most favorable to the plaintiff, is sufficient to carry the case to the jury, and we so hold. Pappas v. Crist, 223 N.C. 265, 25 S.E. 2d 850; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398. The appellant also excepts and assigns as error the following portion of his Honor’s charge: “Now, the law recognizes the doctrine of intervening cause but the Court instructs you that an intervening cause will not relieve from liability when the prior or first negligence was the efficient cause of the injury. The test is not to be found in the number of intervening events but in their character and in the natural connection between the original wrong done and the injurious consequence and if the injury is the natural and probable consequence of the original negligent act or omission and is such as might reasonably have been foreseen as probable, the original wrongdoer is liable notwithstanding an intervening act or event. The Court has said that the rule applying in deciding this question is, was there an unbroken connection between the wrongful act and the injury, the original wrongful act. Was it a continuous operation? Do the facts make a natural whole or was there a new and intervening cause between the wrong and the injury ? It must appear that the injury was the natural and proximate consequence of the negligence and that it ought to have been foreseen in the light of attending circumstances. I think that explains to you the law of general negligence and the law of concurrent negligence, and intervening causes.” The vice complained of lies in the fact that the jury was not instructed as to when intervening negligence insulates the original negligent act and becomes the sole proximate cause of the injury. If an original act of negligence “only becomes injurious in consequence of the intervention of some distinct wrongful act or omission on the part of another or others, the injury is to be imputed to the second wrong as the proximate cause, and not to the first or more remote cause. Cooley on Torts, sec. 50.” Insurance Co. v. Stadiem, 223 N.C. 49, 25 S.E. 2d 202; Spease v. Butner, 217 N.C. 82, 6 S.E. 2d 808. However, whether the negligent act of a defendant may be insulated as a matter of law by an independent act of another, depends on whether or not the original actor “ought to have *91 foreseen in tbe exercise of reasonable prevision or in the light of attending circumstances” that the plaintiff or some other person might be injured as a result and probable consequence of the negligence act. Spease v. Butner, supra; Warner v. Lazarus, 229 N.C. 27, 47 S.E. 2d 496. We think the exception is well taken and must be upheld. The appellant likewise excepted to the following portion of the charge: “Burden of proof simply means that it is the duty of the plaintiff in this case to produce evidence tending to prove the allegation. So, the burden of proof means that it is the duty of the plaintiff to offer evidence in this case tending to prove the allegation.” Burden of proof means “the necessity or duty of affirmatively proving a fact or facts in dispute on an issue raised between the parties in a cause.” Black’s Law Dictionary, 3rd Ed., p. 258. There is a substantial difference between offering evidence which merely tends to prove an allegation and offering evidence sufficient to carry the burden of proof on the issues raised by the pleadings. In the instant case, the burden of proof on the issues of negligence and damages, was upon the plaintiff; and the burden rested upon her to prove negligence on the part of the defendants and to establish her damages by the greater weight of the evidence. The issues are raised by the pleadings and the burden of proof relates to the issues, rather than to the allegations out of which they arose. It is quite possible the jury may have been confused as to the measure of proof required. We think the instruction as given was prejudicial to the appellant. Several other exceptions appear to have some merit, but since there must be a new trial, we deem it unnecessary to discuss them. The appellant is entitled to a new trial, and it is so ordered. New trial.