Neal v. Stevens

DeNNY, C.J. The appellant assigns as error the refusal of the court below to sustain her motion for judgment as of nonsuit on defendant’s counterclaim. The defendant testified that, “The first time I saw Miss Neal’s car it was already partly in the intersection. I was back a little bit from the intersection when I first saw Miss Neal’s car, I don’t know exactly how far, a half a car length, something like that.” G.S. 20-155 (a) provides that when two automobiles approach an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right. Moreover, a driver approaching an intersection from the right and a driver approaching an intersection from the left at approximately the same time, the driver approaching the intersection from [98] the right has the right to assume that the driver of the vehicle approaching from the left will yield the right of way and stop or slow down sufficiently to permit the driver approaching from the right to pass in safety. Bennett v. Stephenson, 237 N.C. 377, 75 S.E. 2d 147; Finch v. Ward, 238 N.C. 290, 77 S.E. 2d 661; Benbow v. Telegraph Co., 261 N.C. 404, 134 S.E. 2d 652. According to the defendant’s own testimony, the plaintiff, who approached the intersection from the right, was already in the intersection before the defendant entered it. In our opinion, this assignment of error should be sustained and it is so ordered. Plaintiff assigns as error that portion of the charge which reads as follows: “* * * (O)r if you are satisfied from this evidence and by its greater weight that the defendant failed to yield the right of way to the plaintiff as required by the statute when two motor vehicles approach an intersection at about the same time where there are no stop signs of any kind, and that he failed to keep the proper lookout and failed to yield as required by that statute, the court charges you that if you should find from this evidence and by its greater weight that that was true in this case, that that would be negligence of itself, that would be negligence per se; * * Plaintiff contends there was error in charging in the conjunctive that plaintiff was required to prove that defendant (1) failed to yield the right of way; that (2) he failed to keep a proper lookout; and (3) that he failed to yield as required by statute. In the case of Andrews v. Sprott, 249 N.C. 729, 107 S.E. 2d 560, a similar assignment of error was sustained. Higgins, J., speaking for the Court, said: “* * * (T)he court charged in the conjunctive as to all the specific allegations of negligence upon which the plaintiff relied. The effect was to require the jury to find the defendant guilty of all the acts of negligence detailed by the court in order to answer the first issue in favor of the plaintiff. The charge, in the manner given, placed upon the plaintiff the burden of showing speed, defective brakes, failure to keep a proper lookout, and failure to keep his car under control. The plaintiff was entitled to have the jury pass on the question whether the evidence showed the defendant, in any of the particulars alleged, had breached a legal duty which he owed to the plaintiff, and if so, whether such breach proximately caused [99] her. injury and damage. Henderson v. Henderson, 239 N.C. 487, 80 S.E. 2d 383; Aldridge v. Hasty, 240 N.C. 353, 82 S.E. 2d 331; Ervin v. Mills Co., 233 N.C. 415, 64 S.E. 2d 431. For additional cases, see Strong’s North Carolina Index, Yol. 1, p. 232, n. 49.” There are other assignments of error which are not without merit. Even so, we deem it unnecessary to discuss them since the errors complained of may not recur on another trial. The plaintiff is entitled to a new trial and it is so ordered. As to plaintiff — New trial. As to defendant’s counterclaim — Reversed.