Faircloth v. Bennett

Sharp, J. Plaintiff’s first assignment of error is to the following portion of the charge enclosed within parentheses: “And the plaintiff also alleges that the defendant failed to> yield the right-of-way to the Faircloth automobile. (And in connection with the word ‘right-of-way,’ the Court charges you as follows: that in this case the vehicle that had the green light with it had the right-of-way. And the term ‘right-of-way’ as used means the vehicle having the right-of-way had the right to- proceed uninterrupted, in a lawful manner, in the direction in which it is moving in preference to another vehicle approaching from a different direction into its path.)” Plaintiff argues that, while this instruction may be correct as far as it goes, it is incomplete and oversimplified as applies to the facts of her case. Plaintiff was a guest passenger, injured in a two-car collison. She has not been charged with contributory negligence. If the negligence of both drivers proximately contributed to her injuries she may recover from either or both. White v. Realty Co., 182 N.C. 536, 109 S.E. 564; Darroch v. Johnson, 250 N.C. 307, 108 S.E. 2d 589. However, she herself has sued only the defendants Bennett. The collision in question occurred when the Faircloth vehicle was leaving the intersection. Each party offered evidence that at the time the vehicle in which he was riding entered the intersection the light facing it was green. Each offered evidence that his vehicle was traveling within the posted speed limit. Each driver testified that his view of the approach of the other was obstructed. As Rodman, J. said with reference to a similar factual situation in Norris v. Johnson, 246 N.C. 179, 97 S.E. 2d 773: “The jury might find from the evidence that one of the vehicles negligently entered the intersection when warned not to do so by a red light, but the operator of the other vehicle, by exercising a proper lookout, could and should have seen the disobedience to the signal command in time to avoid the collision.” In addition, in the instant case, the jury might have found that the defendant’s speed, as he approached the intersection, was greater than was reasonable and prudent considering the obstructed view to his left and that, had his speed been reasonable, he could and should have avoided the collision even though the Faircloth Buick entered the intersection on a red light. [519] In attempting to resolve the 'conflicting evidence in this case the jury could have found that the negligence of both Faircloth 'and Bennett contributed to the collision and plaintiff’s injuries. The judge, in his charge on the first issue, nowhere specifically applied the law to this aspect of the case. He charged the jury generally that if the defendant failed to keep a proper lookout, or failed to drive at a rate of speed which was reasonable under the conditions existing, or if he failed to use due care to avoid colliding with the Faircloth vehicle and such failure was one of the proximate causes of the col-lison, it would answer the first issue YES. However, he never related these instructions specifically to the hypothesis that the defendant entered the intersection on a green light. He likewise never told the jury that if it found that the negligence of the original defendants and the additional defendant contributed to plaintiff’s injuries it would answer the first issue YES. We think that the unqualified instruction quoted above may have lead the jury into the erroneous belief that the driver facing the green light had the unqualified right of way. Hyder v. Battery Co., 242 N.C. 553, 89 S.E. 2d 124. Plaintiff’s first assignment of error must be sustained. The evidence was that neither the Buick nor the Plymouth stopped before the collision. Nevertheless, the judge charged the jury as follows: “The Court instructs that if either of the drivers was confronted by an emergency created by the negligence of another in suddenly stopping, if that be found by you, that person isn’t held to the prudence required ordinarily.” The court gave no further explanation of the doctrine of sudden emergency which, indeed, was not applicable to the evidence in this record. We think this isolated instruction, unsupported by any evidence, must have been confusing to the jury. The other assignments of error relate to issues which the jury did not answer and require no discussion. On the second trial of plaintiff’s case the judge may see fit to submit to the jury the defendants’ counterclaims. In the event the jury should find that the plaintiff was injured by the negligence of defendant Bennett and that the negligence of additional defendant Faircloth concurred, neither Bennett nor Faircloth could recover damages from the other. In the event the jury found that plaintiff was injured by the sole negligence of Bennett, Faircloth would be entitled to recover damages for the injury to 'his automobile. In the event the jury should again answer the first issue NO, for either Faircloth or Bennett to recover from the other, he would have to satisfy the jury by the greater [520] weight of the evidence that the negligence of the other was the sole proximate cause of the collision. New trial.