Tarrant Ex Rel. Tarrant v. Pepsi-Cola Bottling Co.

WiNBORNE, J. The challenge of each defendant to the judgment below is directed (1) to the ruling of court in refusing to grant motion made at close of all the evidence for judgment as in case of nonsuit, C. S., 567, and (2) to portions of the charge. In considering the first, “defendant’s evidence unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff’s evidence, it may be used to explain or make clear that which has been offered by the plaintiff.” Harrison v. R. R., 194 N. C., 656, 140 S. E., 598, and cases recently assembled in Jeffries v. Powell, post, 415. When the evidence in the present record is so considered and taken in the light most favorable to plaintiff, we are of opinion that it is sufficient to take the case to the jury. At the outset it is pertinent to note that for the purposes of the Motor Vehicle Act, effective in this State at the time of the accident in question, “bicycles” shall be' deemed vehicles, and every rider of a bicycle upon a highway shall be subject to the provisions of the Act applicable to the driver of a vehicle, except those which by their nature can have no application. Public Laws 1937, chapter 407, section 2 (ff), as amended by Public Laws 1939, chapter 275, section 1 (b). It is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle using the highways must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. 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. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators *397 so using tbe highways, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am. Jur., Automobiles, sections 165, 166, 167, 168, and 169. See, also, Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326, and Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239. Furthermore, the statute relating to operation of vehicles and rules of the road, Public Laws 1937, chapter 407, as amended, provides “that the driver of any such vehicle overtaking another vehicle proceeding in the same direction shall pass at least two feet to the left thereof, and shall not again drive to the right side of the highway until safely clear of such overtaken vehicle.” Section 111, subsection (a). In keeping with these principles and with this statute, the driver of the truck of the defendant Bottling Company was charged (1) with the duty of anticipating and expecting others to be using Chapel Hill Street, and (2) with knowledge that vehicles might lawfully pass at distance of not less than two feet from the left side of the truck. Hence, before opening the left door into the traveled portion of the street, it was his duty to exercise ordinary care to see that the door could be opened in reasonable safety to approaching traffic. 2 Blashfield Cyc. of Automobile Law and Practice, p. 617, section 1593, citing Seiler v. Philadelphia Rapid Transit Co. (Pa.), 169 Atl., 422. The facts in the Seiler case, supra, are very similar to factual situation here. There the automobile door on the left side toward “the cart-way” was open and the driver had one foot on the running board preparing to alight when a taxicab headed in the same direction struck the edge of the partly opened door and broke it from its hinges. The owner of the automobile sued to recover damages therefor. The Superior Court of Pennsylvania, on appeal thereto from municipal court, in denying recovery, said: “There was room on the street for the taxicab driver to have gone farther to the left, but he was on his right side of the cart-way, and was not bound to anticipate the sudden opening of the car door by Seiler without taking precaution to look or listen before so doing. It was that unexpected action that caused the accident. Negligence must not be imputed to a failure to avoid this sudden opening of the door. The driver of the taxicab was in that portion of the street where he had a right to be, proceeding properly, and, undoubtedly, he would have passed the car without a mishap but for Seiler’s unforeseen action . . . When one is about to alight from an automobile on the cartway side of the street, a duty is imposed upon him to exercise a reasonable and ordinary degree of care by looking or listening for approaching traffic.” 2 Blashfield Cyc. of Automobile Law and Practice, section 1593. The testimony of the plaintiff, in present case, if believed, tends to show that he was riding his bicycle at a moderate rate of speed, two to *398 three feet to the left of the parked truck, where he had a right to ride, and that he was keeping proper lookout when the door of the truck suddenly opened within seven or eight feet in front of him, and at a time when he could not stop his bicycle. This was sufficient as against defendant Bottling Company to take the case to the jury. Now, as regards the defendant Furniture Company, not only the principles and statute above stated, but other provisions of the Motor Vehicle Law, Public Laws 1937, chapter 407, as amended, are pertinent: It is provided that “the driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, with regard for the safety of others and due regard to the speed of such vehicle and the traffic upon and condition of the highway,” section 114, subsection (a). It is also provided that “no person shall drive a vehicle on a highway at a greater rate of speed than is reasonable and prudent under conditions then existing.” Section 103, subsection (a). A violation of either of these statutory provisions or of the provisions of section 111, subsection (a), above quoted, would be negligence per se, and if injury proximately result therefrom, it would be actionable. Williams v. Woodward, 218 N. C., 305, 10 S. E. (2d), 913; Murray v. R. R., supra; Reeves v. Staley, supra. Applying the above principles and statutory provisions to the evidence favorable to plaintiff in the present case, and bearing in mind that a bicycle is a vehicle within the language and meaning of the statute, it was the duty of the driver of the truck of defendant Furniture Company, in the exercise of ordinary care (1) to keep a reasonably careful lookout for plaintiff as he was riding his bicycle, a vehicle, along Chapel Hill Street; (2) to follow the bicycle no more closely than was reasonable and prudent, with regard for the safety of plaintiff, and with due regard to the speed of the bicycle and the traffic and condition then on the street; and (3) to drive his truck at no greater rate of speed than was reasonable and prudent under conditions then existing. And the evidence, taken in light most favorable to plaintiff, is susceptible of inference that the driver of Furniture Company’s truck failed to exercise ordinary care in each of these respects, and it is sufficient to require the submission of second issue. It is contended by defendants that plaintiff was guilty of contributory negligence in these respects: (1) That he was violating the statute in passing on the right side of a line of moving traffic. As to this, there is evidence that there was no vehicle to his left when he turned to avoid striking the door of the parked truck. (2) That he failed to bring his bicycle to a stop in approaching the stop light at intersection of Chapel Hill and Morris Streets in violation of ordinance of the city of Durham. As to this, all the evidence tends to show that the accident occurred while *399 be was passing or just after be passed tbe parked truck of Bottling Company, and tbat tbat was parked from fifty to eighty feet, as variously estimated, from tbe intersection. It is apparent, therefore, tbat plaintiff bad not reached a point where be was called upon to stop. Furthermore, bis testimony is tbat tbe truck struck tbe rear of bis bicycle before be caught up with traffic ahead, and tbat be did not run into tbe side of tbe truck. (3) Tbat plaintiff suddenly changed tbe course of bis bicycle without giving any signal of bis intention so to do. In this respect, a bicycle, being a vehicle in tbe language and within tbe meaning of tbe statute, plaintiff bad tbe right to assume and to act on tbe assumption tbat tbe operator of a vehicle following him, if any, would observe bis statutory duty to exercise ordinary care as to keeping reasonable lookout, as to proper distance between such vehicle and tbe bicycle, and as to reasonable and prudent rate of speed. Moreover, be was acting in an emergency. Manifestly, there is no error in refusing to bold as a matter of law tbat plaintiff was guilty of contributory negligence. Defendants except to tbat portion of tbe charge wherein tbe court instructed tbe jury “tbat if you find by tbe greater weight of tbe evidence, as I have defined tbat term, tbat the defendant, Ohristian-Harward Furniture Company, was operating its truck at a greater rate of speed than was reasonable and prudent under tbe circumstances then existing, tbat would be negligence-per se . . .” This instruction is based upon subsection (a) of section 103 of tbe Motor Yebicle Act, and not upon subsection (b) of tbat section. It is in tbe latter subsection tbat it is provided tbat any speed in excess of lawful speed limits therein specifically prescribed “shall be prima facie evidence tbat tbe speed is not reasonable or prudent and tbat it is unlawful.” This rule of evidence is confined to violations of tbe speed limits there prescribed. Hence, tbe charge as given is in keeping with well settled rule in this State. Consideration of tbe other exceptive assignments to portions of tbe charge in tbe light of tbe theory of tbe trial fails to reveal prejudicial error. Tbe charge is in substantial compliance with legal requirements. Hence, no one of tbe exceptions thereto is cause for disturbing tbe judgment on.the verdict of tbe jury. Tbe judgment is Affirmed.