Stutts v. Burcham

Sharp, J. Defendants’ first three assignments of error are that the court failed to refer to G.S. 20-150 (c) (passing at city intersections), G.S. 20-147 (keeping to the right half of highway at intersections), and G.S. 20-150(e) (observance of no-passing signs), and to explain the application of these statutes to the evidence re [179] lating to the manner in which Stutts operated the automobile in which plaintiff was riding. These three assignments do not comply with the rules of this Court in that they fail to set out defendants’ contentions as to what the judge should have charged. Bank v. Hackney, 270 N.C. 437, 154 S.E. 2d 512; State v. Malpass and State v. Tyler, 266 N.C. 753, 147 S.E. 2d 180; State v. Wilson, 263 N.C. 533, 139 S.E. 2d 736. The rules of practice in this Court are mandatory, and an assignment which does not comply with the applicable rule requires no consideration. Walter Corporation v. Gilliam, 260 N.C. 211, 132 S.E. 2d 313. Appellants’ failure to observe the rule with reference to assignments based on the judge’s failure to charge illustrates the reason for the rule; we are unable to determine what they think the error of omission was. In the brief, they point to the evidence that Stutts attempted to pass the dump truck at an intersection; that he drove to his left of the center line at an intersection; and that he drove on the left side of the highway when there was a yellow line in his proper lane of travel. From this they argue that “any negligence on the part of the driver of the other car in the collision (Stutts) was relevant on the question of proximate cause”; that “the answer raised the issue by the specific denial of proximate cause”; and that “if Stutts had not attempted to pass at the intersection in all probability there would have been no collision.” As authority for their contention “that Stutts was negligent” they cite, inter alia, Tillman v. Bellamy, 242 N.C. 201, 87 S.E. 2d 253, a case in which the plaintiff, a passenger injured in a two-car collision, sued only one of the drivers. The one sued denied negligence and pled the sole negligence of the other. The plaintiff was awarded a new trial because the judge failed to charge the jury that if both drivers were guilty of negligence which contributed proximately to the plaintiff’s injury, the one whom she had sued would not be relieved of liability therefor unless the negligence of the other was the sole proximate cause of the injury. Tillman v. Bellamy, supra, appears to us to control this case, but it offers no comfort to defendants. Had plaintiff sued defendants and Stutts or had defendants made Stutts an additional party-defendant for contribution under G.S. 1-240, the evidence here would have supported a finding that plaintiff was injured by the concurring negligence of Stutts and defendant Burcham. Plaintiff, however, sued only defendants, and they did not interplead Stutts, but all this is immaterial to this appeal. If Burcham’s negligence was one of the proximate causes of plaintiff’s injury, defendants are liable to her. Tillman v. Bellamy, supra. She is not concerned with any claims they may have against a third party for contribution. Although defendants do not specifically make the contention that [180] Stutts’ negligence was the sole proximate cause of the collision, their argument seems to be: (1) Stutts was negligent in that he attempted to pass the truck at an intersection in violation of G.S. 20-150 (c) and G.S. 20-147, and in that he had been driving to the left of a yellow line for at least 477 feet before the collision. (2) He was not required to anticipate such negligence on the part of Stutts. (3) Therefore, Burcham was not negligent in turning left at the time when Stutts was alongside the truck; so Stutts’ negligence was the sole proximate cause of the collision. This contention is untenable. It overlooks the positive duty which G.S. 20-154 imposed upon Burcham to see that the movement could be made in safety before he turned left from No. 311 into Peachtree Drive. Indisputably, the Stutts Volkswagen had been behind the dump truck for some time and it was beside the truck when Burcham started his left turn, whether he cut the corner or turned after he had passed the center of the intersection. Yet, by his own admission, Burcham never saw the Stutts vehicle until after the collision. Obviously, it was there to be seen, had he looked. The conclusion is inescapable that Burcham’s failure to exercise reasonable care to ascertain that his turn could be made in safety contributed to plaintiff’s injuries. The judge correctly charged that, in order to recover of defendants, plaintiff need only satisfy the jury by the greater weight of the evidence that Burcham’s negligence was one of the proximate causes of the collision. In Finch v. Ward, 238 N.C. 290, 77 S.E. 2d 661, an action brought by a passenger against the driver of one of two cars involved in a collision, a different factual and procedural situation was presented. The defendant im-pleaded the driver of the other car for contribution, alleging that he was a joint tort-feasor. The second driver filed answer in which he alleged that the first driver’s negligence was the sole proximate cause of the collision. He also alleged a cross action for his own damages against the original defendant. The jury found both defendants guilty of negligence próxima,tely causing plaintiff’s damage. Upon additional defendant’s appeal, a new trial was granted because the judge failed to instruct the jury upon the effect of additional defendant’s evidence which tended to show that the negligence of the original defendant was the sole proximate cause of the collision. That case, therefore, is not pertinent here. The evidence and pleadings in Finch v. Ward brought into direct issue, in a suit by one driver against another, the question of sole negligence, for, if both drivers were negligent, neither could recover from the other. In the case at hand, however, plaintiff-passenger could recover from either driver if his negligence was one of the proximate causes of the collision. The evidence in this case, which tended to show the negligence of both driv [181] ers, did not require the court to charge on the hypothesis that the negligence of the one whom she had not sued (and whom defendant had not impleaded for contribution) was the sole proximate cause of her damage. Several of our cases contain the statement that, under a general denial, a defendant may show that the sole proximate cause of the injury in suit was the negligence of some third person. Kimsey v. Reaves, 242 N.C. 721, 723, 89 S.E. 2d 386, 387; Lovette v. Lloyd, 236 N.C. 663, 670, 73 S.E. 2d 886, 892-93. This is an application of the rule: “The plea of denial controverts and raises an issue of fact between the parties as to each material allegation denied, and forces the plaintiff to prove them.” Chandler v. Mashburn, 233 N.C. 277, 278, 63 S.E. 2d 563, 554. Notwithstanding, whenever a defendant charged with actionable negligence plans to contend at the trial that the negligence of another person was the sole proximate cause of a plaintiff’s injuries, it is by far the better practice for him to name that person in the answer and to particularize the conduct which he contends constituted the proximate cause. This method of pleading conforms to our general practice, and it not only puts a plaintiff on notice but it also alerts the trial judge to a defendant’s contentions. Under defendant’s general denial of plaintiff’s allegations in this case, she was required to prove only that negligence on the part of Burcham was a proximate cause of her injuries. This she did to the satisfaction of the jury. Neither plaintiff’s nor defendants’ evidence suggests that Stutts’ conduct was the sole proximate cause of the collision. Defendants assign as error the judge’s statement to the jury that neither the pleadings nor the evidence raised an issue of plaintiff’s contributory negligence. This was a correct statement of which defendants have no right to complain. In the trial below, we find No error.