Bennett v. Livingston

WiNBORNE, C. J. Taking the evidence shown in the record of case on appeal as offered by plaintiff in the light most favorable to him and giving to him the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, as is required in such cases, considered under applicable principles of law, a case is made for the jury. In this connection G.S. 20-150 (c) originally declared that “the driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction * * * at any intersection of highway unless permitted so to do by a traffic or police officer,” which as interpreted by the Court meant that a violation of these provisions would be negligence per se, and the Court so held. Donivant v. Swaim, 229 N.C. 114, 47 S.E. 2d 707 (1948); Cole v. Lbr. Co., 230 N.C. 616, [590] 55 S.E. 2d 86 (1949); Howard v. Bingham, 231 N.C. 420, 57 S.E. 2d 401 (1950). The statute, however, has been amended by the Legislature defining the words “intersection of highway” to mean intersections defined and marked by the State Highway Commission by appropriate signs. See Session Laws 1955, Chapter 862, Sec. 1, and Chapter 913, Sec. 2, and Session Laws 1957 Chapter 65, Sec. 11. And it is noted that the evidence in the instant case does not show that what is referred to as intersection of highway is designated and marked by the Highway Commission by appropriate signs. Indeed, the plaintiff described it as “a cross-over”, and not an intersection. Hence it appears that the amendment to defendants’ answer, allowed by the court, fails to bring the case within the provisions of G. S. 20-150 (c). Therefore, if it be that plaintiff overtook and passed the vehicle of defendants proceeding in the same direction, such violation would not be negligence per se. In our opinion the evidence presents questions of negligence and contributory negligence which should be submitted to the jury. The judgment below is Reversed.