Bobbitt v. Haynes, 745

• Decision Date: 03 February 1950
• Docket Number: No. 745,745
• Citation: 57 S.E.2d 361,231 N.C. 373
• Parties: BOBBITT, v. HAYNES et al.
• Court: North Carolina Supreme Court

Page 361

57 S.E.2d 361

231 N.C. 373

BOBBITT, v. HAYNES et al.

No. 745

Supreme Court of North Carolina.

Feb. 3, 1950

Fuller, Reade, Umstead & Fuller, Durham, for defendant-appellant.

R. M. Gantt, Durham, for plaintiff-appellee.

WINBORNE, Justice.

The sole question presented for consideration on this appeal is predicated upon assignments of error based on exceptions to the refusal of the court below to allow defendant's motion for judgment as of nonsuit first entered at the close of plaintiff's evidence, and renewed at the close of all the evidence in the case.

It is the contention of defendant that the evidence introduced by plaintiff, and shown in the record, taken in the light most favorable to him, and giving to him the benefit of every reasonable intendment and inference to be drawn therefrom, shows him to be guilty of contributory negligence as a matter of law,--and, hence, that judgment as of nonsuit on this ground should have been granted. However, when tested by pertinent statutes of this State, and decisions of this Court, the evidence is not so clear in meaning as to warrant such holding.

In this connection it is appropriate to consider the legal rights of the respective parties at the time of and under the circumstances of the collision. It is noted that while there is allegation in the complaint that U. S. Highway No. 70, immediately east of, as well as within the corporate limits, 'runs through a very thickly populated section', it is not alleged that the approach to the scene of the collision along the highway from the east was in a 'business district' as defined in Motor Vehicle Act, G.S. § 20-38(a), or in a 'residential district' as defined in Section G.S. § 20-38(w) 1 of said act. Thus the speed restrictions prescribed by statute, G.S. § 20-141, as rewritten in Part IV, Section 17 of Chapter 1067 of 1947 Session Laws of North Carolina, effective from and after July 1, 1947, prior to the date of the collision in question, are pertinent to be considered in judging the conduct of plaintiff. It is provided that '(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing'; and that '(b) Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of' a speed of fifty five miles per hour in places other than those in business and residential districts, for passenger cars, etc.

And it is provided in subsection (c) that the fact that the speed of a vehicle is lower than the foregoing limit shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty to use due care.

Moreover, it is provided in subsection (d) of this statute that whenever the state highway and public works commission shall determine upon the basis of an engineering and traffic investigation that any speed hereinbefore set forth be greater than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, said commission shall determine and declare a reasonable and safe speed limit thereof, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway. And in subsection (f) the local authorities within their respective jurisdictions are given like powers.

Furthermore, it is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highways. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators so using the highway, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am.Jur. Automobiles, Sections 165, 166, 167; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565.

And it is not contended on this appeal that there is insufficient evidence to support a finding by the jury that defendant was negligent in the manner alleged.

Now, as to the alleged contributory negligence of plaintiff: While it is averred in the answer that there was a 'Stop' sign on Liberty Street warning vehicles entering Highway No. 70 from Liberty Street to come to a full stop before doing so, there is neither allegation nor proof that such sign was so placed by, or with the sanction of local authorities. Who then had the right of way?

The statute G.S. § 20-155(a) provides that 'When two vehicles approach or enter 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 except as otherwise provided in G.S. 20-156. ' And G.S. § 20-156(a)...