Oakes v. James

WEBB, Judge. If the jury could not reasonably conclude that the negligence of Ernest Clifton James was a proximate cause of the accident or if all the evidence so clearly establishes that Walter Lee Oakes’ negligence was a proximate cause of the accident that no other reasonable conclusion is possible, the dismissal at the end of the plaintiffs’ evidence must be affirmed. See Ragland v. Moore, 299 N.C. 360, 261 S.E. 2d 666 (1980). Negligence is the failure to do what a reasonably careful and prudent person would have done or the doing of something which a reasonably careful and prudent person would not have done considering all the circumstances. See Prosser, Handbook of the Law of Torts, § 32 (1971) for a discussion on negligence. We believe a jury could reasonably conclude that the negligence of Mr. James was a proximate cause of the collision. The evidence in the light most favorable to the plaintiffs shows that Mr. James was on a ramp leading into an interstate highway. It was his duty to yield the right-of-way. See G.S. 20-140.3(6). The jury could find from the evidence that Mr. James did not yield the right-of-way and a reasonable man would have done so. The jury could also find that this failure to yield the right-of-way was a proximate cause of the collision. We do not believe that the only reasonable inference a jury could make from the evidence is that the negligence of Mr. Oakes was a proximate cause of the collision. The plaintiffs’ evidence shows he was operating the tractor-trailer within the speed limits. He had the right to assume Mr. James would yield the right-of-way. See Penland v. Green, 289 N.C. 281, 221 S.E. 2d 365 (1976). There was a pickup truck in the adjoining lane so that he could not move to that lane. We do not believe the only inference the jury could make from this evidence is that Mr. Oakes did some [768] thing a reasonable man would not have done or that he failed to do something a reasonable man would have done immediately prior to the collision. The defendants argue that there is no evidence that Mr. James turned directly in front of Mr. Oakes. They say there is no testimony as to the distance between the vehicles of Mr. Oakes and Mr. James when Mr. James entered Highway 29. We believe that from the testimony of Mr. Oakes the jury could infer it was a very short distance. Defendants also argue if Mr. James did not yield the right-of-way all the evidence shows that Mr. Oakes knew he would not do so and a jury could only infer that he did not take reasonable measures to avoid the collision. It is true that Mr. Oakes testified he knew Mr. James “was going to try to come in.” We do not believe a jury would have to conclude from this that Mr. Oakes knew Mr. James would enter Highway 29 as he did. We believe it is a jury question whether Mr. Oakes kept his vehicle under control so as to avoid a collision. For the reasons stated in this opinion, we hold it was error to allow the defendants’ motion to dismiss. Reversed and remanded. Judges HILL and WHICHARD concur.