Black v. Penland

Bobbitt, J. King Street runs north-south, parallel with Sterling Street and approximately “300 or 350 feet” west thereof. Penland, traveling east on Meeting Street, crossed its intersection with King and approached and entered its intersection with Sterling. A witness for plaintiff testified he saw the Dodge truck traveling east on the portion of Meeting Street between King and Sterling, and in his opinion the speed of the Dodge truck was then "approximately 35.” An investigating police officer, a witness for plaintiff, testified Penland said “he was doing approximately 22 miles an hour at the time he entered the intersection.” Defendants’ evidence tended to show the speed of the Dodge truck as it approached and entered the inter [694] section of Meeting and Sterling Streets was 18-20 miles per hour. Suffice to say, the speed of the Dodge truck as it approached and entered said intersection was material in determining whether Penland was negligent. Plaintiff pleaded and offered in evidence an ordinance of the Town of Morganton adopted December 6, 1954, and in force on December 28, 1959. Section 2 thereof provides: “It shall be unlawful for any person to operate a vehicle (defined in Section 1) in the Town of Morganton in excess of the following speeds: (a) 20 miles per hour in any business district, (b) 35 miles per hour in any place other than those named in Section 2(a).” The ordinance does not define the term “business district.” With reference to speed “in any business district,” the ordinance is in exact accord with G.S. 20-141 (b) (1). ■ The court instructed the jury as follows: “. . . the court instructs you that if from the evidence you find, and find by its greater weight, that this was a business section, as the court has defined that for you, that the speed limit at that place would be 20 miles an hour; ánd if you find by the greater weight of the evidence that the truck was traveling at a speed greater than that, that that would constitute negligence in itself.” G.S. 20-38, in part, provides: “Definitions of words and phrases.— The following words and phrases when used in this article shall, for the purpose of this article, have the meanings respectively prescribed to them in this section, except in those instances where the context clearly indicates a different meaning: “(a) Business District. — The territory contiguous to a highway where Seventy-five per cent or more of the frontage thereon for a distance of three hundred (300) feet or more is occupied by buildings in use for business purposes.” (Our italics) A “business district” is determinable with reference to the status of the frontage on the street or highway on which the motorist is traveling. Conditions along intersecting streets or highways are excluded from consideration. Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406. Whether Meeting Street, between King and Sterling, was a business district, is determinable in accordance with the rules stated in Hinson v. Dawson, 241 N.C. 714, 86 S.E. 2d 585. This is the evidence as to “ (t) he territory contiguous to” Meeting Street, going west from Sterling to King. On the north side: A poolroom (facing Sterling) was at the Sterling corner. Behind the “pool place,” there was “a little battery shop in a small filling station.” Next, there was “a large vacant area where there (were) no structures.” The only other buildings in the block were “at the upper-end — the First Baptist Church facing on King Street and the educational building facing on [695] Meeting.” On the south side: The Medlock house, a rooming house, was at the Sterling Corner. Next, there was “the place” where a doctor lived and had his office. Next, there was a large vacant area with a “greenhouse” or “flower garden building” where plants and flowers were sold. Next, on the corner opposite the First Baptist Church, there was a rooming house. There was no evidence as to the frontage occupied by buildings in use for business purposes. Under the rules stated in Hinson v. Dawson, supra, the evidence was insufficient to support a finding that Meeting Street, between King and Sterling, was a business district. “It is established by our decisions that an instruction about a material matter not based on sufficient evidence is erroneous.” Childress v. Motor Lines, 235 N.C. 522, 530, 70 S.E. 2d 558, and cases cited. It is unnecessary to consider appellants’ contention that the court’s instructions as to what constitutes a “business district” were erroneous. A new trial must be awarded on the ground the evidence was insufficient to warrant any instruction in relation to Penland’s negligence as to speed within a “business district.” While a new trial is awarded on the ground stated, it seems appropriate to direct attention to the fact that no ordinance of the Town of Morganton, providing for the regulation of traffic at the intersection of Meeting and Sterling Streets by means of an automatic signal control device, was pleaded or in evidence. In this connection, see Smith v. Buie, 243 N.C. 209, 213, 90 S.E. 2d 514, and cases cited, and Wilson v. Kennedy, 248 N.C. 74, 79, 102 S.E. 2d 459; also, G.S. 160-272 and G.S. 8-5. New trial.