Gregor v. Willis

Geaham, J. The sole question raised by this appeal is whether the evidence taken in the light most favorable to plaintiff was sufficient to withstand defendant’s motion of nonsuit. We hold that it was. It is true, as argued by the appellant, that there was no evidence concerning the speed of the Willis car, the actual distance it was from the intersection when the Gregor car entered, or whether appellant’s driver looked in either direction before entering the intersection. ■ However, appellant’s further answer and defense and ¡cross action alleges that at the same time appellant’s driver entered the intersection, the Willis car was approaching the intersection. Also, there was evidence from which it could be legitimately inferred that the collision occurred immediately upon the Gregor car’s pulling out into the intersection and at a time when it had completely negotiated only half of the twenty-six foot street. This evidence, when taken in the light most favorable to the plaintiff, was sufficient to support a finding by the jury that appellant was guilty of negligence in any one or more of the following particulars alledged by plaintiff: (1) She failed to keep a proper lookout. (2) She failed to yield the right-of-way to traffic on the dominant street. (3) She entered the intersection from a subservient street without first ascertaining that the movement could be made in safety. Appellant’s driver had the positive duty to determine by proper lookout that she could enter the intersection with reasonable assurance of safety to herself and others. Primm v. King, 249 N.C. 228, 106 S.E. 2d 223. She is charged with having seen what she could have seen if she had looked. Raper v. Byrum, 265 N.C. 269, 106 S.E. 2d 223. If she did look, she is charged with having seen what she should have seen. Bowen v. Gardner, 275 N.C. 363, 168 S.E. 2d 47; Wall v. Bain, 222 N.C. 375, 23 S.E. 2d 330. The Willis vehicle unquestionably had the right-of-way as it approached the intersection and it was the duty of appellant’s driver to yield the right-of-way. See G.S. 20-158. Our holding here is not inconsistent with the case of Farmer v. Reynolds, 4 N.C. App. 554, 167 S.E. 2d 480, which is strongly relied •upon by appellant. There, plaintiff’s evidence showed that as the driver on the servient street approached a yield right-of-way sign, [541] his vision was obstructed by a big holly tree and some hedges near the intersection. No car was seen approaching until his car was at the curb line and proceeding into the intersection. At that time the car approaching on the dominant street was between 200 and 250 feet away. In affirming a judgment of nonsuit in favor of the driver of the car entering the intersection from the servient street, this court held that plaintiff’s evidence showed that the motorist on the dominant highway was a sufficient distance from the intersection to warrant the assumption by the driver on the servient street that he could cross in safety before the other vehicle, if operated at a reasonable speed, reached the intersection. In this case plaintiff’s evidence does not affirmatively show that when the Gregor car entered the intersection the Willis car was a sufficient distance .away to permit appellant’s driver to reasonably assume that she could cross the intersection in safety. A reasonable inference from the evidence here is that appellant’s driver entered the intersection without making any determination that her movement could be made in safety and that this negligence was a proximate cause of the collision and plaintiff’s injuries. Affirmed. MallaRD, C.J., and Moeeis, J., concur.