Clifton v. Turner, 534

• Citation: 125 S.E.2d 339,257 N.C. 92
• Decision Date: 02 May 1962
• Docket Number: No. 534,534
• Court: United States State Supreme Court of North Carolina
• Parties: Beeler E. CLIFTON v. Delma TURNER.

Page 339

125 S.E.2d 339

257 N.C. 92

Beeler E. CLIFTON v. Delma TURNER.

No. 534

Supreme Court of North Carolina.

May 2, 1962

Wood & Spence, Smithfield, for defend-ant-appellant.

J. R. Barefoot and C. P. Trader, Benson, for plaintiff-appellee.

BOBBITT, Justice.

Defendant's Assignments of Error Nos. 1 and 2 are based on his exceptions to the overruling of his motions for judgment of nonsuit. The only motion to be considered is that made by defendant at the conclusion of all the evidence. G.S. § 1-183; Spaugh v. City of Winston-Salem, 249 N.C. 194, 105 S.E.2d 610.

The evidence was in sharp conflict as to whether the plaintiff's station wagon struck defendant's Ford immediately after defendant entered upon Highway #50 or after defendant had proceeded north thereon for a distance of four hundred feet or more. It would seem the jury resolved this critical phase of the controversy in favor of plaintiff.

Defendant contends, even if the collision occurred immediately after defendant entered upon Highway #50, plaintiff's testimony discloses his contributory negligence as a matter of law. In this connection, it is noted that defendant alleged, as a basis for his plea of contributory negligence (and also as a basis for his counterclaim), that plaintiff's negligence consisted, inter alia, in operating his station wagon at excessive speed and without keeping a proper lookout. Even so, when considered in context, these allegations, as well as defendant's allegations with reference to plaintiff's negligence in other respects, relate to a collision defendant alleged occurred four hundred feet or more north of the intersection.

Defendant bases his contention largely upon this portion of plaintiff's testimony, elicited on cross-examination, to wit: 'When I first saw the Turner car, it was about 50 feet from the intersection. I was 100 to 200 feet away at the time. It had already passed the stop sign and was moving, and I don't know whether he stopped at the stop sign. It went right on out in front of me, and I saw it pulling out. When I first saw the Turner car, I was 100 to 200 feet from it. I could then see the stop sign and saw he had already passed it, and I proceeded right on without slowing down. When I struck the Turner car we traveled Northwest toward Raleigh. When the cars stopped they were partly off the highway. I don't have any idea how fast the Turner car was going when I struck it. He was not going fast, he just passed right on out in front of me.'

If, as plaintiff testified, defendant had passed the stop sign and was moving towards Highway #50 when plaintiff first saw him, this fact, standing alone, was insufficient to put plaintiff on notice defendant would fail to stop before entering Highway #50.

With reference to G.S. § 20-158(a), the legal principles stated below are well established.

'* * * the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives or should give notice to the contrary, he will be entitled to assume and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway. ' Winborne, J. (later C. J.), in Hawes v. Refining Co., 236 N.C. 643, 650, 74 S.E.2d 17; King v. Powell, 252 N.C. 506, 509, 114 S.E.2d 265; Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450; Wooten v. Russell, 255 N.C. 699, 122 S.E.2d 603.

G.S. § 20-158(a) did not require that defendant stop where the stop sign was located. It required that defendant, in obedience to the notice provided by the stop sign, bring his car to a full stop before entering Highway #50 and to yield the right of way to vehicles approaching the intersection on Highway #50. As stated by Denny, J. (now C. J.), in Edwards v. Vaughn, 238 N.C. 89, 93, 76 S.E.2d 359: 'The purpose to be served by placing a stop sign some distance from the intersection of a servient and dominant highway, is to give the motorist ample time to slow down and stop before entering the zone of danger. And when the driver of a motor vehicle stops at a stop sign on a servient highway and then proceeds into the intersection without keeping a lookout and ascertaining whether he can enter or cross the intersecting highway with reasonable safety, he ignores the intent and purpose of the statute, G.S. § 20-158. It is the duty of the driver of a motor vehicle on such servient highway to stop at such time and place as the physical conditions may require in order for him to observe traffic conditions on the highways and to determine when, in the exercise of due care, he may enter or cross the intersecting highway with reasonable safety. In many places, stop signs due to the surrounding physical conditions are located at points from which the driver of a motor vehicle cannot get an unobscured vision of the intersecting highway for a sufficient distance to ascertain whether it can be entered or crossed with reasonable safety.' It is noted that defendant testified: 'You have to drive past the stop sign to see on Highway...