Butner v. Spease

• Decision Date: 02 February 1940
• Docket Number: 752 and 753.
• Parties: BUTNER v. SPEASE et al. SPEASE v. BUTNER.
• Court: North Carolina Supreme Court

6 S.E.2d 808

217 N.C. 82

BUTNER v. SPEASE et al.

SPEASE v. BUTNER.

Nos. 752 and 753.

Supreme Court of North Carolina

February 2, 1940

Civil actions by guests to recover damages for personal injuries resulting from collision between an automobile and a truck alleged to have been caused by the negligence of the drivers of both vehicles, and as the two causes of action arise out of the same state of facts, for convenience, they were consolidated and tried together. Fleming v Holleman, 190 N.C. 449, 130 S.E. 171.

On the evening of 7 February, 1939, soon after dark, Mrs. Bertha Butner was riding with her husband, L. T. Butner, in his Studebaker automobile on the Bethania-Rural Hall Highway and was injured when her husband's car collided with a Ford truck driven by E. A. Spease and in which his mother, Mrs Myrtie Spease, was riding at the time. Mrs. Myrtie Spease was also injured in the collision. The drivers of the two motor vehicles escaped with only slight injuries. Mrs. Bertha Butner brought suit against E. A. Spease, alleging negligence. L. T. Butner was made a party defendant in this action on motion of the original defendant. Thereafter, Mrs Myrtie Spease instituted suit against L. T. Butner, alleging negligence. By consent, the two causes were consolidated for trial.

The Bethania-Rural Hall Highway is a bithulithic, black-top road 15 feet wide, with dirt shoulders 2 1/2 feet in width on either side. It is level and straight where the injury occurred, and the headlights of both vehicles could be seen for a distance of three-quarters of a mile. The direction of the Butner car was southward; that of the Spease truck northward. They collided at the entrance of a side road leading westward to Tobaccoville.

As the Butner car approached the "mouth" of this side road, which was approximately 45 to 50 feet wide, and when the two vehicles were about 40 feet apart, the Spease truck suddenly turned to its left, across the path of the oncoming Butner car, and undertook to enter the side road at its southern edge. The front of the Butner car struck the right side of the truck "just in front of the rear fender", knocked it over a fill and caused it to turn over several times.

L T. Butner testified: "As we drew closer together, I pulled off my side of the road 12 or 18 inches in order to give the approaching car plenty of room to pass. When I was within approximately 40 feet of the approaching car, without any warning, without any signal, without any sounding of the horn, the driver made a quick left-hand turn, cutting directly in front of my path. I immediately applied my brakes and the next thing I knew we had collided. *** My car stopped approximately 15 feet south of the center of the intersection. *** I can't look at a car approaching me at night and tell what speed it is going. *** There were some marks there for about 26 feet from where I skidded, where I put on my brakes, to the impact. *** I had no time to direct the direction of my car other than to make a slight turn. It happened about as far from me to where you are right there. *** I had no idea he was going to make a left turn. *** The side road is a dirt road. *** There was no light coming up the side road showing anybody was approaching. *** I made the statement I was going 45 or 50."

E. A. Spease testified: "I saw the Butner car just before I started to make my turn. I was practically in the act of making the turn when I first saw his car. I had not seen it prior to that time. *** After I had turned, it seemed as though the car had shot out of the bushes or somewhere right on me. I would say Mr. Butner was going at least 70 to 75 miles an hour. *** I held my hand out as a signal 10 or 15 feet before I made a turn. *** I don't think I blew my horn. *** I couldn't say how far away he was. *** I misjudged his speed. *** I guess I would not have turned in front of him if I had not misjudged his speed. *** It is hard to judge speed at night when a car is coming towards you. *** The accident occurred on my left-hand side as I was going in the side road. *** Mr. Burner was right where I thought he was, but I misjudged his speed. *** I thought I could get across."

The record contains much evidence pertaining to the extent of plaintiffs' injuries.

Upon submission to the jury under separate issues, there was a verdict for the plaintiff in each case. From judgments thereon, the defendants appeal, assigning errors, the defendant Butner relying principally upon his motions for judgments of nonsuit.

P. V. Critcher, of Lexington, and Fred M. Parrish, of Winston-Salem, for plaintiff Butner, appellee.

John C. Wallace and Peyton B. Abbott, both of Winston-Salem, for plaintiff Spease, appellee.

John C. Wallace and Peyton B. Abbott, both of Winston-Salem, for defendant Spease, appellant.

Fred S. Hutchins and H. Bryce Parker, both of Winston-Salem, for defendant Butner, appellant.

STACY, Chief Justice (after stating the facts as above).

The case calls for the application of old and familiar principles to new facts. It is conceded that in one respect the record presents a difficult problem. See Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, and Quinn v. R. R., 213 N.C. 48, 195 S.E. 85. Indeed, the application of the doctrine of insulating the negligence of one by the subsequent intervention of the active negligence of another, as a matter of law, is usually fraught with some knottiness. Smith v. Sink, 211 N.C. 725, 192 S.E. 108. However, the principle is a wholesome one, and must be applied in proper instances. Hinnant v. Atlantic Coast Line R. R., 202 N.C. 489, 163 S.E. 555; Herman v. Atlantic C. L. R. R., 197 N.C. 718, 150 S.E. 361.

Here, the essential facts are not in dispute. The liability of E. A. Spease, the driver of the truck, is established beyond all peradventure. Was his negligence the sole proximate cause of the collision? This is the real question posed by the record.

It must be steadily borne in mind that we are dealing with a fact situation not heretofore presented in any case. Cf. Cunningham v. Haynes, 214 N.C. 456, 199 S.E. 627. Two motor vehicles are approaching each other at night on a straight, level stretch of road with the headlights of both visible for a distance of three-quarters of a mile. No other traffic is in sight. When they are within 40 feet of each other at the entrance of a side road, the north-bound truck makes a quick left turn, without notice or warning so far as the other can see or hear, and is struck by the south-bound car. This turn was made, not at the center, but at the southern edge of the side road, and at a time when the other car had about reached or perhaps passed its northern edge. The driver of the south-bound car had no reason to believe that the other would turn into this side road. Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707. The indications were all to the contrary. True, the north-bound driver says he gave a hand signal just before making the turn, but it is a matter of common knowledge that a hand signal can seldom be seen by the driver of an approaching car under the circumstances here disclosed, because to him the other driver's hand would be in the shadow of his own lights. Nor would such a signal necessarily indicate to the approaching driver that a perilous left turn across his path was intended. Moreover, both drivers testify to the immediacy of the emergency occasioned by the sudden turn. Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562; Poplin v. Adickes, 203 N.C. 726, 166 S.E. 908. Such a situation was not reasonably foreseeable by the driver of the south-bound car. Guthrie v. Gocking, supra. He instantly applied his brakes, as the skid marks show, and stopped immediately following the impact. Indeed, the only suggestion of negligence on the part of the driver of the south-bound car is the speed at which he was going. The evidence of the defendant Spease in regard to this may be taken with some allowance, because he frankly says that he misjudged the speed of the Butner car; that it is hard to estimate the speed of a car at night when it is coming towards you, and that he was practically in the act of turning when he first saw the car. Nevertheless, conceding the speed of the Butner car to be in excess of 45 miles an hour, and therefore prima facie unlawful, it is manifest that its speed would have resulted in no injury but for the "extraordinarily negligent" act of the defendant Spease--in the language of the Restatement of Torts, Sec. 447. Powers v. Sternberg, supra. Hence, the proximate cause of the collision must be attributed to the gross and palpable negligence of the driver of the north-bound vehicle. Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Beach v. Patton, 208 N.C. 134, 179 S.E. 446; Hinnant v. R. R., supra; Herman v. R. R., supra; Burke v. Coach...