Cole v. Fletcher Lumber Co.

• Decision Date: 21 September 1949
• Docket Number: 103
• Citation: 55 S.E.2d 86,230 N.C. 616
• Parties: COLE v. FLETCHER LUMBER CO., Inc.
• Court: North Carolina Supreme Court

55 S.E.2d 86

230 N.C. 616

COLE v. FLETCHER LUMBER CO., Inc.

No. 103

Supreme Court of North Carolina

September 21, 1949

Two civil actions to recover damages allegedly sustained in, and growing out of a collision between an automobile owned by plaintiff Robert Lee Cole, operated by his wife, the plaintiff Eleanor Cole, and a truck owned by defendant and operated by its employee in the course and scope of its business, which occurred when the automobile attempted to overtake and pass the truck at the intersection of a side road into which the truck was turning,-- resulting in personal injury to plaintiff Eleanor Cole, and in property loss and expense to plaintiff Robert Lee Cole,--consolidated by consent for purpose of trial.

In the trial court judgments as of nonsuit were entered upon motions of defendant, made at close of plaintiffs' evidence, and plaintiffs appeal to Supreme Court, and assign error.

N.C. W. Gennett, Jr., Asheville, J. Y. Jordan, Jr. Asheville, for plaintiffs appellants.

Harkins Van Winkle & Walton, Asheville, for defendant appellee.

PER CURIAM.

While the plaintiffs allege, and offered evidence tending to show that the driver of the truck of defendant failed to observe the requirements of statute G.S. s 20-151, in respect to giving way to overtaking vehicle, and G.S. s 20-153 in respect to turning at intersection, and G.S. s 20-154 in respect to signals on turning from a direct line, the evidence offered by plaintiffs is equally clear in showing that the collision occurred when plaintiff, Eleanor Cole, was attempting to overtake and pass the truck proceeding in the same direction at an intersection of highway, without permission so to do by a traffic or police officer,--in violation of provisions of G.S. s 20-150(c), limiting the 'privilege of overtaking and passing', as averred by defendant. Such violation of the statute is negligence per se, Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Donivant v. Swaim, 229 N.C. 114, 47 S.E.2d 707. Defendant pleads it, among other things, as contributory negligence. And on this record it is clear that such negligence on the part of plaintiff contributed to the injury as the proximate cause, or one of the proximate causes of the collision, and its consequences. This is sufficient to bar plaintiffs' right to recover. See Austin v Overton, 222 N.C. 89, 21 S.E.2d 887.

Thus upon careful consideration thereof, the evidence...