Clarke v. Holman, 355

• Decision Date: 30 October 1968
• Docket Number: No. 355,355
• Court: North Carolina Supreme Court
• Parties: Peggy Louise CLARKE v. Ronald Eugene HOLMAN and Hughey Fred Townsend.

Page 783

163 S.E.2d 783

274 N.C. 425

Peggy Louise CLARKE v. Ronald Eugene HOLMAN and Hughey Fred Townsend.

No. 355.

Supreme Court of North Carolina.

Oct. 30, 1968.

West & Groome, Lenoir, for plaintiff appellant.

Smathers & Hufstader, Hickory, Larry W. Pitts, Newton, for defendant appellee, Hughey Fred Townsend.

HUSKINS, Justice.

The sole question presented for decision is whether or not the Court of Appeals erred in allowing Townsend's motion for nonsuit.

On motion to nonsuit, all the evidence which tends to support plaintiff's claim must be taken as true and considered in its light most favorable to plaintiff, giving him the benefit of every reasonable inference which may legitimately be drawn therefrom. King Homes, Inc. v. Bryson, 273 N.C. 84, 159 S.E.2d 329; Safeguard Insurance Co. v. Wilmington Cold Storage Co., 267 N.C. 679, 149 S.E.2d 27. Contradictions and discrepancies are resolved in plaintiff's favor. Watt v. Crews, 261 N.C. 143, 134 S.E.2d 199; Nixon v. Nixon, 260 N.C. 251, 132 S.E.2d 590; Smith v. Corsat, 260 N.C. 92, 131 S.E.2d 894; Raper v. McCrory-McLellan Corp., 259 N.C. 199, 130 S.E.2d 281. Defendant's evidence which contradicts that of the plaintiff, or tends to show a different state of facts, is ignored. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307. Only that part of defendant's evidence which is favorable to plaintiff can be considered. Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330.

The evidence, when subjected to these rules, would permit a jury to find the following facts:

1. The Connelly Springs Road runs generally north-south from Lenoir to Connelly Springs. Six miles south of Lenoir it is intersected from the west by Rural Paved Road 1136 forming a 'T' intersection. Looking south from that intersection, the Connelly Springs Road is straight and level for 300 to 528 feet. Looking north it is straight and level for one-half mile. Its pavement is 20 feet wide with a painted center line and a four-foot shoulder on each side. The maximum lawful speed for vehicular travel on this road is 55 miles per hour.

2. On 4 May 1966, during daylight hours with clear weather and dry pavement, defendant Townsend was driving north on the Connelly Springs Road intending to turn left on Rural Paved Road 1136. Upon reaching that intersection, he was unable to make a left turn due to southbound traffic on Connelly Springs Road. He therefore stopped to allow the oncoming traffic to pass before turning left himself. He had been stopped there for 30 seconds or more, possibly 45 seconds, when a vehicle driven by defendant Holman struck him from the rear.

3. The defendant Holman was driving a Ford pickup truck north on the Connelly Springs Road and came upon the stopped Townsend vehicle. He had not previously seen the Townsend vehicle that day and did not see it on this occasion until he was within 97 feet of it. He could have seen it when he rounded a curve at least 300 feet away, and his failure to do so is unexplained. Nothing obstructed his vision. When he did see it, he was then too close to stop. He skidded 57 feet, struck the Townsend vehicle in the left rear, then crossed into the southbound lane and struck the vehicle of plaintiff Clarke, finally coming to rest after striking another vehicle which was following plaintiff. Had Holman seen the Townsend vehicle when he was 150 feet away from it, he could have stopped in time to avoid a collision.

4. Plaintiff Clarke was driving south on Connelly Springs Road at approximately 45 miles per hour followed by a 1957 Ford driven by Cecil Dennis Gragg. Several other vehicles were proceeding south in front of her. When she was about 1700 feet north of the 'T' intersection at Rural Paved Road 1136, she saw the Townsend vehicle stopped there in the northbound traffic lane of Connelly Springs Road. No Signals, mechanical or otherwise, were being given by Townsend. His pickup truck was sitting 'dead still' in the road. When plaintiff's vehicle arrived at the intersection, it was struck by the Holman vehicle which she had not seen prior to that moment.

5. As a result of her collision with the Holman vehicle, plaintiff was seriously injured.

Although defendant Townsend testified that his vehicle was not equipped with mechanical turn signals and that he gave a hand signal during the last 200 feet traveled indicating his intention to turn left at Rural Paved Road 1136, we do not consider this evidence on motion to nonsuit but take the evidence in its light most favorable to plaintiff which tends to show that no signal of any kind was given before stopping or maintained thereafter while waiting to complete a left turn.

Plaintiff charges Townsend with negligence (1) in failing to signal his intention to stop, (2) in failing to give a signal of his intention to make a left turn, and (3) in failing to maintain such signal until the left turn was completed. Townsend contends that he was not required to maintain any signal after stopping and says that failure, if he did fail, to give a signal before stopping was not a proximate cause of the collision which later occurred.

Negligence has been defined as 'the failure to exercise proper care in the performance of some legal duty which defendant owes the injured party under the circumstances in which they are placed.' 6 Strong's N.C. Index 2nd, Negligence, Sec. 1. To be actionable, however, negligence must be the proximate cause of injury to another. McGaha v. Smoky Mountain Stages, Inc., 263 N.C. 769, 140 S.E.2d 355; Reason v. Singer Sewing Machine Co., 259 N.C. 264, 130 S.E.2d 397; Kientz v. Carlton, 245 N.C. 236, 96 S.E.2d 14. Thus, in an action to recover damages for personal injury resulting from alleged actionable negligence such as this case, the plaintiff must show: '(1) That there has been a failure on the part of defendant to exercise proper care in the performance of some lagal duty which the defendant owed the plaintiff under the circumstances in which they were placed; and (2) That such negligent breach of duty was the proximate cause of the injury, a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such result was probable under the facts as they existed.' Luttrell v. Carolina Mineral Co., 220 N.C. 782, 789, 18 S.E.2d 412, 416. Reasonable foreseeability is an essential element of proximate cause, and if the injury complained of is not reasonably foreseeable by the party charged, in the exercise of due care, he is not liable. 'Foreseeable injury is a requisite of proximate cause, and proximate cause is a requisite for actionable negligence, and actionable negligence is a requisite for recovery in an action for personal injury negligently inflicted.' Osborne v. Atlantic Ice & Coal Co., 207 N.C. 545, 546, 177 S.E. 796, 797.

G.S. § 20--154 provides in pertinent part that the driver of any vehicle upon a highway 'before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, * * * and whenever the operation of and other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle, of the intention to make such movement. * * * All hand and arm signals shall be given from the left side of the vehicle and all signals shall be maintained or given continuously for...