Tysinger v. Coble Dairy Products

*722 Winborne, J. Plaintiff’s challenge to the correctness of the judgment as of nonsuit from which this appeal is taken raises for decision two questions: 1. Taking the evidence shown in the record in the light most favorable to plaintiff, as we must do in considering judgments as in case of nonsuit, is there sufficient evidence of actionable negligence on the part of defendant to require the submission to the jury of an issue with respect thereto ? 2. If so, upon all the evidence, was the plaintiff’s testator guilty of contributory negligence as a matter of law? We are of opinion and hold that the evidence fails to show actionable negligence against the defendant. But if it be conceded that it does make such a case, we are of opinion and hold, as a matter of law, that upon all the evidence shown in the record, the plaintiff’s testator was negligent, and that'such negligence was a proximate or contributing cause of his injury and death. Negligence is not to be presumed from the mere fact of injury or that • testator was killed. Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661, and cases cited. See also Pack v. Auman, 220 N. C., 704, 18 S. E. (2d), 247; Mitchell v. Melts, 220 N. C., 793, 18 S. E. (2d), 406. In an action for recovery of damages for wrongful death allegedly resulting from actionable negligence, the plaintiff must show: First, that there has been a failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff’s testator under the circumstances in which they were placed; and second, that such negligent breach of duty was the proximate cause of the injury which produced the death — a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the facts as they existed. There must be legal evidence of every material fact necessary to support a verdict, and the verdict “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., 51. Mitchell v. Melts, supra, and cases there cited. If the evidence fails to establish either one of the essential elements of actionable negligence, the judgment of nonsuit must be affirmed. Whether there is enough evidence to support a material issue is a matter of law. Mitchell v. Melts, supra. It is appropriate, therefore, to consider the evidence in the light of the various acts of negligence alleged in the complaint and charged against defendant as having proximately caused the injury and death of plaintiff’s testator. First. It is alleged that defendant failed in its duty to equip the truck with adequate brakes and to keep in “good working order” such brakes *723 in violation of provisions of G. S., 20-124 (a). This statute requires that every motor vehicle when operated upon a highway to be equipped with brakes adequate to control the movement of and to stop such vehicle, and that such brakes shall be maintained in good working order. A violation of this statute is negligence per se, but such violation must be a proximate cause of injury to become actionable. However, there is no evidence pertaining directly to the brakes on the truck in the present case. And in the absence of evidence as to nearness of the truck to plaintiff’s testator when he entered the highway, no reasonable inference may be drawn from the attendant circumstances as to condition of the brakes on the truck. Second. It is alleged defendant violated the provisions of G. S., 20-141 (b) 3, and of G. S., 20-141 (c), pertaining to speed restrictions, in that it operated the loaded truck at time and place at a speed of more than thirty-five miles per hour, and in that driver failed to decrease speed in going around a curve, when special hazard existed with respect to pedestrians so as to avoid striking the testator. The statutes referred to provide: That where no special hazard exists a speed of thirty-five miles per hour for motor vehicles designed, equipped for, or engaged in transporting property shall be lawful, but any speed of such motor vehicles in excess of thirty-five miles per hour shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful; and the fact that the speed of a vehicle is lower than the foregoing prima facie limit shall not relieve the driver from the duty to decrease speed when going around a curve, or when special hazard exists with respect to pedestrians, and that speed shall be decreased as may be necessary to avoid colliding with any person on or entering the highway in compliance with legal requirements and the duty of all persons to use due care. In this connection, the evidence fails to show that the truck was traversing a curve as it approaches the scene of the collision with testator. Moreover, the only evidence as to the rate of speed at which the truck was traveling related to the speed of the truck after the collision. In the light of admitted facts as to length of marks on the shoulder of the highway and the point at which the truck came to rest, the suggestion of a speed of forty-five miles per hour as the truck was leaving the highway and going on the shoulder, is contrary to human experience. Ingram v. Smoky Mountain Stages, Inc., ante, 444, 35 S. E. (2d), 337. The physical facts “speak louder than words.” Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88. Also, in this connection, the statute pertaining to the rights and duties of pedestrians in crossing roadways at other than cross walks, section 135 of chapter 407, Public Laws 1937, now G. S., 20-174, provides that : (a) Every pedestrian crossing a roadway at any point other than within *724 a marked cross walk or within an unmarked cross walk at ail intersection shall yield the right of way to all vehicles upon the roadway; and that (d) it shall be unlawful for pedestrians to walk along the traveled portion of any highway except on the extreme left-hand side thereof, and such pedestrian shall yield the right of way to approaching traffic. On the other hand, in subsection (e) of G. S., 20-174, it is provided that “notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, and shall give warning by sounding the horn when necessary, and shall exercise proper precaution upon observing any child or any confused or incapacitated person upon a roadway.” And there is another principle of law applicable to the situation here in hand, that is, that “one is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption that others will exercise care for their own safety,” 45 C. J., 705. Indeed, the operator of a motor vehicle on a public highway may assume and act upon the assumption that a pedestrian will use reasonable care and caution commensurate with visible conditions, and that he will observe and obey the rules of the road. See Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239, and authorities there cited. See also Hobbs v. Coach Co., ante, 323. In the light of these principles it was the duty of plaintiff’s testator, in crossing the highway at a point other than within a marked cross walk or within an unmarked cross walk at an intersection, to yield the right of way to defendant’s truck' approaching upon the roadway, and the operator of the truck, in the absence of anything which gave or should have given notice to the contrary, was entitled to assume and to act upon the assumption that plaintiff’s testator would use reasonable care and caution commensurate with visible conditions, and that he would observe and obey the rules of the road. Applying this principle: There is evidence that the highway toward Lexington from which direction the truck was traveling, was visible from three hundred yards to a quarter of mile. And the evidence indicates that in going from the Everhart home to testator’s home, testator would be facing the direction from which the truck was approaching. And there is no evidence of anything that gave or should have given notice to the operator of defendant’s truck that plaintiff’s testator was unaware of the approach of the truck, and would not obey the riile of the road, until the time the testator started across the highway, nor is there evidence as to how close the truck was to him when he started across- — -except the fact that he was stricken by the side of the truck near the center of the highway. Under such circumstances, to infer that the operator of the truck failed to *725 exercise due care to avoid colliding with the testator upon the roadway, or to infer that a failure to give warning by sounding the horn was a proximate cause of the collision between the truck and testator, or to infer that the driver of the truck failed to exercise proper precaution upon observing testator upon the roadway in confused state, would be mere speculation. Verdicts may not be predicated upon speculation. Mitchell v. Melts, supra. Third. The next act of negligence alleged is that defendant violated the provisions of G. S., 20-146, as to duty to drive on right half of the highway, and of G. S., 20-150 (d), forbidding the driving on left side of center line of highway. The latter statute, however, relates to driving on the left side of the center line of highway upon the crest of a grade or upon a curve in the highway, which are conditions the evidence fails to show here. The former statute provides that “upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway . . . unless it is impracticable to travel on such side of the highway ...” A violation of this statute would be negligence per se, but to be actionable, such negligence must be a proximate cause of the injury. However, the evidence here discloses marks on the highway indicating that before reaching the scene of the collision the truck was traveling on the right half of the highway. The course of the marks, and the testimony of the eyewitness Everhart make it apparent that the turn of the truck to left and across the center line was in an effort to avert the collision. As was said by Barnhill, J., in Ingram v. Smoky Mountain Stages, Inc., supra, speaking to a similar situation, “It is a human instinct when a collision is impending between two vehicles to turn or cut away from the other vehicle. The evidence here discloses that it was done in an effort to avoid the collision. There is no circumstance tending to show that it was other than what a man of reasonable prudence would have done.” Fourth. The last act of negligence alleged is that defendant violated the provisions of G. S., 20-140, pertaining to reckless driving, in that the truck of defendant was operated carelessly and heedlessly in willful and wanton disregard of the rights and safety of others, at a speed and in a manner to endanger or be likely to endanger person and property and by operating same to the left, when by the exercise of proper care, he could have turned to the right where there was ample space to safely pass without striking plaintiff’s testator. In this respect, and in the light of the rights of parties respectively, and of the duties imposed by law upon each, as hereinabove discussed, the evidence is too speculative and uncertain to support this allegation. Now, then, as to the alleged contributory negligence of plaintiff’s testator, it is sufficient to say that in crossing the highway at a point other *726 than a marked cross walk or within an unmarked cross walk at an inter' section it was his duty to yield the right of way to all vehicles upon the highway. G. S., 20-174 (a). The highway was visible, according to all the evidence, for at least three hundred yards in the direction from which the truck of defendant was approaching. And in leaving the point where he was talking to witness Everhart to go toward his home, he necessarily faced in the direction of the oncoming truck. He must have seen the truck, and taken the chance of crossing, or, have been inattentive to the duty imposed upon him by law, and started across without looking for vehicles on the highway. In either event, a reading of the evidence leads to the conclusion, as a matter of law, that his own conduct contributed to his injury and death, unfortunate and regrettable as it may be. The judgment below is Affirmed.