Murphy v. Asheville-Knoxville Coach Co.

OlaeksoN, J. Tbe evidence on tbe part of tbe plaintiff was to tbe effect that be was operating, for one L. H. Hudson, a Hup truck, weighing about 2tons, filled with stone, and was going from Walnut Cap Quarry and down tbe mountain, on highway No. 20, to Laurel River bridge to take tbe stone on highway No. 208 to tbe road work on tbe Little Laurel River, and was injured at about 2:30 in tbe afternoon of 19 April, 1929. He was going down tbe mountain to tbe intersection of highways Nos. 20 and 208 at Laurel River bridge. Highway No. 20 went from Asheville to Knoxville, Tenn., and highway No. 208 intersected it at Laurel River bridge and went west along tbe bank in a northerly direction to Greenville, Tenn. His course, when be arrived at tbe intersection of Nos. 20 and 208, Laurel River bridge was to turn to tbe right and go up tbe bank of Laurel River in a northerly direction on No. 208 to tbe road work. Just before reaching tbe intersection of Nos. 20 and 208, at tbe Laurel River bridge, highway No. 20 was 22 feet wide, and from tbe center of tbe bridge across tbe intersection was 36 feet and entering No. 208 was 24 feet wide. Tbe bus was going on No. 20 to Knoxville, and tbe course of tbe bus, when tbe driver arrived — 98 — at the intersection of Nos. 20 and 208, was to turn to the left and cross over the bridge at Laurel River and follow No. 20 on to Knoxville— the course.of the truck was to turn to the right and follow No. 208 to the road work where the road was being graveled. The bus was longer than the truck. The bus passed the truck some distance up the mountain, and the grade down the mountain was pretty heavy. Pos'ton knew the truck was coming behind him. Plaintiff described the impact and what occurred at the time, in part, as follows“When the defendant approached this bridge, he was driving. He was wobbling all over the road. He was wobbling around the road. He slowed down and stopped right here, just at the intersection of the bridge. When he slowed down and stopped at that point, I reached down, blowed my horn and started to pass. He cut across the road to the left in front of me. Q. Did he show any signal or make any sound at all? A. No, I did not see any. No sir. He was where I could see him. I was looking at him. When I started to go past him he cut across the road in front of me with the bus, when he cut across the road in front of me, I did not have no room to go by nor get on the bridge either. The right corner of my bumper hit the bus. I cut out and got on the bridge. He caught my tail gate and shoved me off the bridge. I turned onto the bridge. ... I had my brakes on all I could get them on. The brakes were working; both wheels were sliding, I mean I had them locked. . . . The bus and truck came apart when he knocked me off the bridge, when the truck went over the bridge. I was still on that truck when I went over that bridge. I went in the water. ... I operated my truck with my right foot. I operated my clutch with my left foot. I set my foot on the clutch and blowed my horn at the same time. The bus passed me somewhere on one of those curves — I don’t know where. ... I was not going so fast I don’t think; something like 15 or 20 an hour, down the moun- ■ tain. . . . There was no place for me to go. He cut right in front of me. ... I guess he was about 30 feet from the bridge when he stopped. I thought he was going on toward Greenville. ... I started to pass. When I started to pass him he cut in front of me. I am certain he stopped. I don’t know whether he took on any passengers or not. Nobody was standing by the side of the road. I couldn’t see on the right-hand side whether he was taking on passengers or letting off passengers. We followed one another down the mountain, I don’t know how far. He was standing still when I started to pass. When I started by the truck I was traveling at the rate of 8 or 10. We both went on the bridge side by side. . . . When he first pulled in front of me on the bridge, I kind of glanced to get on the bridge to keep from knocking off in the river. I was not off my road when this happened. — 99 — . . . Tbe reason I left tbe Greenville road was tbat be cut me off tbe Greenville road. I didn’t bave anywhere to go except tbat bridge to keep — unless I went in tbe river.” W. C. Ledbetter, a witness for plaintiff, testified, in part: “From tbe skid marks of tbe truck you could see tbe outside or upper marks tbat tbe truck bad made in going across tbe bridge. Tbey were about three feet or something like tbat from tbe left-hand rail. You could see tbe skid marks of tbe wheel tbat was nearest to tbat timber, tbat is tbe one I was talking about. It was about three and a half or four feet after it went on tbe bridge. Tbe skid marks continued along tbat side 10 or 12 feet. I noticed then where tbe truck bad got on top of this guard rail, tbe front axle bad, and bad turned off those bannisters for eight or ten feet before it bad gone over. It bad gone I guess 55 feet before it turned over. Tbe bridge is 80 feet long.” C. B. Bennett, for plaintiff, testified, in part: “When I got down a little piece and looked over and saw tbe bus standing there and saw tbe truck, just saw tbe wheels. It was turned up. I went down, turned my truck across tbe bridge, parked and Mr. Poston, tbe bus driver, came walking from tbe bus. I said ‘Where is tbe driver at?’ He said ‘He is in tbe river.’ I said, ‘Let’s get him out.’ He said ‘Hell, it is not any use, be is done drowned.’ He said there was not any use, with an oath to it, tbat be was done drowned. I said, ‘I am going to try to get him out.’ . . . About tbat time Mr. Ingle drove up. Ledbetter was not far behind him. Tbey came down there and Mr. Murphy’s brother and Mr. Ledbetter came to tbe water and got him. All tbe time I was bolding bis bead. Poston did not come down there. . .• . I talked to Mr. Poston, be was drinking, I smelled it.” There was other evidence corroborating plaintiff. This evidence was to tbe way tbe collision occurred, and as to tbe drinking, was denied by defendant Poston, and bis evidence was corroborated by witnesses, and tbe further fact tbat be bad not been drinking. Defendants’ evidence was to tbe effect tbat tbe bus was on tbe right-band side of tbe center of No. 20 and it bad slowed down to 10 miles an hour, and never stopped, and when it turned at tbe intersection of highways 20 and 208 to continue on No. 20 and cross tbe bridge over Laurel River, tbe driver, Poston, gave proper warning and used due care, and plaintiff ran tbe truck into tbe left side of tbe bus in front of tbe rear wheel. Tbe evidence of plaintiff sustained bis allegations, as alleged in tbe complaint, and tbe evidence of defendants sustained their allegations as alleged in tbe answer. Tbe defendants, at tbe close of plaintiff’s • evidence and at tbe close of all tbe evidence, made motions in tbe court below for judgment as in case of nonsuit, C. S., 567, which tbe court — 100 — overruled. In this we can see no error. Tbe controversy was one of fact, which it was the province of the jury to determine. The questions of negligence, contributory negligence and proximate cause were sufficient to be submitted to the jury. “It is the well settled rule of practice and accepted position in this jurisdiction, that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is 'entitled to the benefit of every reasonable'intendment upon the evidence, and every reasonable inference to be drawn therefrom.’” Nash v. Royster, 189 N. C., at p. 410; Abel v. Dworsky, 195 N. C., at p. 867. In Butner v. R. R., 199 N. C., at p. 697, it is said: “In an action for the recovery of damages resulting from injuries caused by the negligence of the defendant, where the defendant relies upon the contributory negligence of the plaintiff, as a bar to his recovery, the burden is upon the defendant on the issue involving this defense. It is so provided in this State by statute. C. S., 523. Ordinarily, the question whether plaintiff was guilty of contributory negligence is to be determined by the jury. It is only when a clear case of contributory negligence has been made out by the evidence offered by the plaintiff,, that a motion by the defendant for judgment as of nonsuit, on that ground, should be allowed.” The law of the road applicable to the facts, on plaintiff’s evidence, is set forth in Public Laws 1927, chap, 148, sec. 17 (N. O. Code, 1927, Michie, annotated, C. S., 2621(59) : “(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 if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding the horn, 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: Whenever the signal is given the driver shall indicate his intention to start, stop, or turn by extending the hand and arm from and beyond the left side of the vehicle as hereinafter set forth: Left turn — -hand and arm horizontal forefinger pointing. Right turn- — hand and arm pointed upward. Stop — hand and arm pointed downward. All signals to be given from left side of vehicle during last fifty feet traveled.” — 101 — Tbe court below on tbe first issue, defined (1) negligence, (2) proximate cause, and charged: “Tbe court further instructs you that a violation of a section of a statute made and intended for tbe protection of life and property on a highway is negligence and that if it is tbe proximate cause of an injury, tbe proximate cause of damage, it is actionable negligence.” Tbe court below on this aspect, charged tbe jury: “Tbe court instructs you that tbe driver of a vehicle upon a highway before starting, stopping or turning from a direct line shall first see that such movement caJi be made in safety, and if any pedestrian may be affected by such movement shall give a clearly audible signal by sounding tbe born, and whenever tbe 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. The signal required for stopping a motor vehicle under the section which the court has just read to you is hand and arm pointed downward and that signal to be given from the left side of the vehicle during the last fifty feet traveled. Plaintiff says and contends that defendant, Poston, violated this section of the statute and that such violation was the proximate cause of his injury. The court instructs you that if you find ■ the defendant Poston violated this section of the statute and that such violation was the proximate cause of the injury to the plaintiff, that it would constitute actionable negligence. The court further instructs you that if you find that defendants’ bus stopped and then started to pull across the road in front of the truck driven by the plaintiff without giving signal required by the statute, that is, with the hand and arm horizontal with forefinger pointed, signal given to the left of the vehicle, it would constitute negligence, and if it was the proximate cause of the injury it would constitute actionable 'negligence. The court further instructs you that if you find plaintiff’s truck was caught in the bus and the driver of the bus continued to apply power to the bus and that said act was the proximate cause of the injury and the driver of the bus could in the exercise of ordinary care have avoided the injury, it would constitute negligence. The court further instructs you if the plaintiff has satisfied you by the greater weight of the evidence that the driver of the bus was guilty of actionable negligence, put the driver in such position that he could not avoid the injury, through attempting to do so after the danger became apparent, it is not excused by a subsequent attempt. Plaintiff says and contends, as the court previously stated in giving the contentions of the parties, that he was injured by the negligence of the defendants, as alleged in the complaint and that you should answer the first issue £Yes.’ ” — 102 — In reference to defendants’ plea of contributory negligence the court below, on the second issue defined contributory negligence and charged the jury: “The test is, did the plaintiff fail to exercise that degree of care which an ordinarily prudent person would have exercised or employed under similar circumstances, and was his failure to do so the proximate cause of the injury. If the defendant has satisfied you that plaintiff was guilty of contributory negligence, it would be a bar to any recovery on his part to this action. The defendants say that plaintiff was guilty of contributory negligence, that he is guilty in negligently driving his truck at a reckless and unlawful rate of speed; negligently attempting to pass defendants’ bus on a heavy mountain grade full of curves in a reckless, improper and unlawful manner; negligently failing to give any signal of an intention to attempt to pass the defendants’ bus; that he was guilty of negligence in driving his truck in the left side of defendants’ bus while the defendants’ bus was being driven properly along highway No. 20; that he was guilty of negligence in failing to keep his truck under proper control in going down the mountain grade where the said collision occurred; that he was guilty of negligence in failing to slow up and sound any signal and take the precaution required by law and the rule of ordinary care in apoproaching the bridge across the Laurel River; that he was guilty of negligence in driving his truck off the bridge. That his acts were the cause of the injury and not negligent acts on the part of the defendants. That the statute of North Carolina porovides that ‘any person driving a vehicle on a highway shall drive the same at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface .and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at such a speed as to endanger the life, limb or property of any person.’ ' (Substantially C. S., 2618, in part.) The court instructs you if you find the plaintiff was operating his truck in violation of this section, and further find that such violation was a proximate cause of his injury, it would constitute contributory negligence. The court further instructs you that it was the duty of the defendants, Asheville-Knoxville Coach Company to slow down at the intersection of the Knoxville and Greenville highways, and that it was not negligence for the defendants to bring their bus to a near stop and then again across the intersection on the Knoxville highways across the Laurel River bridge. The court instructs you that defendant Poston had a right to do everything he could to keep the bus on the bridge after he was struck by the plaintiff if the plaintiff’s negligence caused the collision between the truck and the bus. That you cannot find the defendant guilty of negligence in swerving — 103 — bis bus if he did swerve on the bridge if these acts on the part of the defendant were necessary for the purpose of protecting himself and passengers in said bus from going off the bridge, if you find the plaintiff was guilty of actionable negligence in striking the bus.” In 3-4 Huddy Cyc. of Automobile Law (9 ed. — 1931), sec. 145, pp. 245-6, we find: “Statutes and municipal ordinances in many cases require the driver of a motor vehicle to indicate his intention of bringing his car to a stop; and a violation of such a regulation may form a basis for a charge of negligence. Even in the absence of such a regulation, a driver is not relieved of the duty to use some care in respect to traffic in the rear; and whether the failure to give a signal to the rear is or is not negligence depends on the circumstances of the case, and usually is a question of fact for the jury. A signal that a forward vehicle is to stop should not be given unless the driver actually does so.” In the well written Law of Automobiles (North Carolina), by Var-tanian, sec. 89, at pp. 193-4, we find the following: “Even in the absence of statute, the rule of the unwritten law being that the driver must exercise ordinary care to prevent collisions, it is the duty of the driver to give timely signals of warning to other drivers and pedestrians of the course to be adopted by him. He is not, for example, warranted in suddenly turning to the left without warning and without regard to conditions of travel following. It is his duty when approaching pedestrians on a public street to warn them of his approach by the sounding of a horn, gong or bell. The failure to do so constitutes negligence on his part. A pedestrian crossing at an intersection will be justified in his inference that the course of an automobile proceeding in a certain direction would not be changed without warning, especially into another street. But the burden is on the plaintiff to establish defendant's negligence in failing to warn and maintain a vigilant watch. The Uniform Act Regulating the Operation of Motor Vehicles expressly provides that the driver 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 the signals prescribed by the statute plainly visible to the driver of such other vehicle, of his intention to make such movement.” In Schwartz Trials of Automobile Accident Cases, see. 270, in part, we find: “Regulations have been prescribed which forbid turning except at street intersections. But, even if a regulation provided for turns to be made at street intersections, they must be made with due regard to the rights of other travelers. It is held that the turning of a corner — 104 — toward the left is fraught with greater danger to other travelers than is the turning toward the right. The driver wishing to turn to the left must use reasonable care to avoid a collision with a vehicle which is approaching from his rear and attempting to pass on the left side.” The jury, after deliberation, came into the court and through its foreman, asked the court certain questions, which we think the court answered correctly as to the law. Then the following question: “(Foreman) 'Would we consider the highway leading to Greenville, the center of the road leading the other way? (The Court) It depends. You may consider all the conditions that you found existed. It is for you to determine where the bus was and for you to determine where the truck was. Is there anything else, gentlemen? (Foreman and jurors) No, sir.” We think, under the peculiar intersection of highways Nos. 20 and 208 at Laurel River bridge, this question led into the realm of fact that the jury had to determine. At least the question is ambiguous, considering the particular location, and we cannot hold it, if error, prejudicial or reversible. In North Carolina the Motor Vehicle Uniform Act has been substantially adopted. Public Laws 1927, chap. 148. Michie, N. C. Code, 1927, Anno., chap. 55, art. 8, sec. 2631(43) ei seq. Sec subsec. (58). We think there was sufficient evidence to be submitted to the jury of negligence of defendants after the collision, and the court below did not err in the charge to the jury on this aspect. We think the court below did not err in declining to give all the prayers for instruction as requested by the defendants. The charge as a whole covered the law applicable to the facts. We think the court below charged the jury correctly as to negligence, contributory negligence and proximate cause, and applied the law applicable to the facts. In a long charge, we do not think technical matters contended as errors, fished out of the charge, can be held as reversible or prejudicial error, when on the whole the charge is correct. The case seems to have been unusually well tried by the court below. The entire charge and extracts from the charge before set forth show care and painstaking in the trial below. The litigants, through their able attorneys, presented every phase of the controversy, setting forth the law and contentions. It was mainly a question of fact in the province of the jury to decide. The jury could have on the facts decided either way, but that is their province, not ours. In law we find No error.