Pearson v. Luther

OlabksoN, J. The questions involved: First. Did the trial court err in refusing to grant motion for judgment of nonsuit on counterclaim of defendant? ~We cannot so hold. At the close of defendant’s evidence and at the close of all the evidence the plaintiff, in the general county court of Buncombe Cotxnty, made motions for judgment as in case of nonsuit as to defendant’s counterclaim. C. S., 567. These motions were overruled and affirmed on appeal to the Superior Court. In this we see no error. The evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken in its most favorable light for the plaintiff, and he is entitled to the benefit of ever-y reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. The evidence was to the effect that, although there was a stop signal, the view of Hilliard Street coming into it from Church Street going north was obstructed. It was a blind corner. Defendant slowed up and went into low gear, she eased out into the street. Had to get out into Hilliard Street before she could see out in the street, and if plaintiff had been traveling at a moderate rate of speed, in accordance with the law, she would have had plenty of time to get across the street. Before entering Hilliard Street she practically stopped momentarily, then proceeded, going less than 10 miles an hour. When she first saw plaintiff he was at the end of the block and she thought she had plenty of time to get across the street. “He was certainly flying, he was going very fast, about 60 miles per hour, I imagine.” She was in the intersection and he was some 200 feet from it. He gave no signal, he was not slowing up; she got as far as the middle of the street and saw plaintiff’s car was coming at such a rate of speed that she could not get across the street and would be hit, so she swerved her car. In Jones v. Bagwell, 207 N. C., 378, at p. 386, it is written: “It is well settled that contributory negligence is plaintiff’s negligent act occurring and cooperating with defendant’s negligent act in producing injury. Negligence and contributory negligence do not essentially differ. Liske v. Walton, 198 N. C., 741. The burden of proving negligence is on plaintiff, that of contributory negligence is on defendant. — 421 — In Elder v. R. R., 194 N. C., 617 (619), citing authorities, is the following: Originally, under C. S., 567, in cases calling for its application, there was some question as to whether a plea of contributory negligence (the burden of such issue being on the defendant) could be taken advantage of on a motion to nonsuit, but it is now well settled that such may be done when the contributory negligence of the plaintiff is established by his or her own evidence, as he or she thus proves himself or herself out of court.’ ” In Hendrix v. R. R., 198 N. C., 142 (144), it is written: “It is well settled in this jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per se, but the violation must be the proximate cause of the injury. Ordinarily this is a. question for the jury if there is any evidence, but if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.” ' If there is more than a scintilla of evidence, contributory negligence is for the jury. Moseley v. R. R., 197 N. C., 628. There must be a casual connection between the negligent act and the injury. The negligence must be the proximate cause or one of the proximate causes of the injury. N. C. Code, 1935 (Michie), sec. 2617 (a), requires under certain conditions that motor vehicles must come to a full stop at highway crossings. In the section is the following: “This section shall not interfere with the regulations prescribed by towns and cities. No failure so to stop shall be considered contributory negligence per se in any action for injury to person or property; but the facts relating to such failure to stop may be considered with other facts in determining negligence.” The city of Asheville passed an ordinance requiring persons to stop before entering Hilliard Street, but there are limitations in the ordinance : “And shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.” The testimony of defendant was that she was in the intersection and plaintiff was some 200 feet away. Section 2618(D) is as follows:, “Fifteen miles per hour in traversing an intersection of highways when the driver’s view is obstructed. A driver’s view shall be deemed to be obstructed when at any time during the last one hundred feet of his approach to such intersection he does not have a clear and uninterrupted view upon all of the highways entering such intersection for a distance of two hundred feet from such intersection.” The street intersection, to say the least, was a peculiar one. Plaintiff was coming east on a 7 per cent down grade on Hilliard Street into the intersection of Church and Hilliard streets. His view was ob — 422 — structed. Tbe defendant was driving north on Cburcb Street, 24 feet in width, and had to drive into Hilliard Street, upgrade, before she could see, on account of-the concrete wall and evergreen hedge to her left — the direction from which plaintiff was coming. She was in the intersection when she saw plaintiff 200 feet away coming at 60 miles per hour. She had the right of way, and the evidence indicates that she was trapped by plaintiff’s speed. Whether her failure to stop was the proximate cause of the injury was at least a question of fact for the jury to determine and not one of law for this Court. Second. Did the trial court err in refusing to submit to the jury special instructions as requested and err in his charge to the jury in response to an inquiry from juror? We think not. Under the view, we take of the evidence, we think plaintiff’s prayers for special instructions, as requested, were properly refused, but the court below gave same in substance. The court defined correctly negligence, contributory negligence, and proximate cause under the respective issues, and charged: “So when plaintiff has shown by the greater weight of the evidence that the defendant failed to exercise due care, and that in the failure to exercise due care she violated some legal duty to the plaintiff, and such failure on her part was the proximate cause of the collision and consequent injuries, then he will have established actionable negligence, so if you find by the greater weight of the evidence, it being the duty of the defendant to obéy all the laws of the State and the city to stop at the intersection before entering, if you find she did not stop as required by law, and if you find her failure to stop at the intersection before entering it was the proximate cause of the collision, then you would, and it would be your duty to answer the first issue ‘Yes,’ or if you find by the greater weight of the evidence that the defendant, Miss Luther, drove her car into the intersection at a rate of speed in excess of fifteen miles an hour, that would be negligence, and if you find that the speed of the car, if you find she did drive at that speed into the intersection was the proximate cause of the collision, then it would be your duty to answer the first issue ‘Yes.’ The violation of any law or ordinance enacted or intended for the preservation or protection of the life, limb, or property is negligence in itself, and when it is shown by the greater weight of the evidence that such negligence was the proximate cause of the injuries complained of, then it would be actionable negligence, and you would answer the first issue ‘Yes.’ The violation of any law or ordinance enacted or intended for the preservation or protection of the life, limb, or property is negligence in itself, and when it is shown by the greater weight of the evidence that such negligence was the proximate cause of the injuries complained of, then it would be actionable negligence, and you would answer the first issue — 423 — ‘Yes.’ Not every negligent act is actionable negligence. Defendant may bave been however negligent, if her negligence resulted in no injury as the proximate result of the injury, then it is not actionable negligence; only when negligence becomes the proximate cause of the injury does it establish liability on the part of the defendant. The court charges you it is a violation of the law to drive an automobile past the stop sign on Church Street at this intersection without bringing the car to a stop. The court charges you it would be a violation of the law to drive a ear up Church Street into the intersection at a rate of speed in excess of fifteen miles an hour at this point.” The charge covers clearly the law applicable to the facts. Inquiry of the juror was as follows: “(Court.) Gentlemen, I take it you have not arrived at a verdict. First juror: We have all agreed that both parties were negligent. Second juror: Your Honor, the movement of the defendant’s car into this hazardous place, it seems to have a tendency we don’t get that cleared up exactly — in other words, what we have in mind is as to its stillness to a stop or whether coming in there it could gradually be moved and not necessitate a standstill. (Court.) Gentlemen, these parties are to be judged by the jury in the light of the circumstances in which they appeared to have been at the time. (Court.) The violation of a statute is not necessarily actionable negligence, but it is negligence, but not necessarily such negligence as would warrant a recovery against the party violating it unless the jury shall find by the greater weight of the evidence that the movement of the car of the defendant in entering the intersection was not in accordance with the standard of the prudent man, then it would be negligence, actionable negligence; in other words, the defendant is required to exercise that care which is commensurate with the circumstances in which she is placed; due care is that care which any person of ordinary prudence would have used in the same circumstances. If she failed to exercise due care in entering the intersection, regardless of whether she was violating the statute or not, if she failed to exercise due care, it would be negligence, because the duty she owed to the plaintiff was to exercise due care. Due care is a well defined meaning in the law, and that is always measured by the standard of what a person of ordinary prudence would have done under the same circumstances. If she failed to exercise that care, the next question that comes to the jury is, Was her failure the proximate cause, that is, the cause of the collision, the cause without which it would not have occurred? Suppose, for instance, that the jury should have found she stopped at the intersection, she stopped before entering, and then have done the same thing she says she did, if she was exercising due care when she drove into the intersection in the manner in which she contends she did. Every person is charged with — 424 — the duty in operating an automobile to exercise due care. Neither party is required, under the law, to anticipate the other party will violate the law. If the driver of an automobile sees another car approaching him in the middle of the street, he has the right to assume, before the car gets to him, the party driving the car in the middle of the street will go to his own side of the road, and he has the right to act upon that assumption, so if the plaintiff was coming down the street, he had the right to assume every person crossing that intersection would obey the law and not cross the intersection without ascertaining the condition of the traffic in it. On the other hand, the defendant had the right to assume, if she saw the plaintiff driving down the hill at a rapid rate of speed, she had the right to assume before he got to the crossing he would bring his car down to the speed required by law and bring himself within the law before he reached the intersection. She had a right to assume he would do that and to act upon that assumption, and she could act upon it without being held guilty of negligence. It is a question of what a person of ordinary prudence would have done under those circumstances. There is no degree of care to be used. The test is whether the care that was exercised was such care as a person of ordinary prudence should have used when confronted by the same situation, charged with a like duty. A person handling sticks of dynamite would be required to use that care which a person of ordinary prudence should use when handling dynamite. A person handling stovewood would be required to use that degree of care which a person of ordinary prudence should use when handling stovewood. It would naturally, of course, require more care in handling dynamite than in handling stove-wood. But the test is: ‘What would a person of ordinary prudence have done under those circumstances, what would you or any other person of ordinary prudence have done when confronted and placed -in the same situation?’ Both parties are held to the degree of care which a person of ordinary prudence should have used under the circumstances in which they were placed; as I say, both parties may rely upon the other party or assume the other party will obey the law, and if one violates the law, then the question is whether that violation was the cause of the accident. Proximate cause is that cause without which it would not have happened, the actual cause that produced the collision, and that is the question you have to decide, of course, and you must decide it from the evidence as you heard it here, measure the conduct of the parties by the rule of the prudent man.” Taking the charge in connection with the charge previously given, that it was the duty of the defendant “to stop at the intersection before entering,” etc., we see no prejudicial or reversible error. — 425 — Third. Did the trial court err in its ruling as to the introduction of certain evidence? This relates to the photographs exhibited by defendant. They were not introduced as substantive evidence. In Elliott v. Power Co., 190 N. C., 62 (65), it is said: “Plaintiffs excepted because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses’ testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled in explaining the testimony.” Honeycutt v. Brick Co., 196 N. C., 556; Kelly v. Granite Co., 200 N. C., 326. We think they were competent and the restriction properly made “cannot be considered by you as substantive evidence, but may be used and considered only for the purpose of illustrating such testimony as has been given or will be given by this witness.” After plaintiff had objected and excepted to these pictures, it seems about the time of the trial he had a photographer take three pictures. The plaintiff then recalled J. L. West, who had theretofore testified for plaintiff, and asked certain questions in regard to the photographs. The defendant objected, and the objection was sustained. The defendant, Olivette Luther, in rebuttal testified that the conditions were not the same as at the time of the collision. Thus there was evidence, pro and con, as to the similarity of conditions. We think, under the facts and circumstances of this case, the matter was in the sound discretion of the trial court. N. C. Handbook of Evidence (Lockhart), sec. 277; Hampton v. R. R., 120 N. C., 534. The court below overruled all the exceptions and assignments of error made by plaintiff in the general county court and found no error in the judgment. On the whole record we see no prejudicial or reversible error. The judgment of the court below is Affirmed.