Cox v. Hennis Freight Lines, 240

• Citation: 72 S.E.2d 25,236 N.C. 72
• Decision Date: 22 August 1952
• Docket Number: No. 240,240
• Parties: COX, v. HENNIS FREIGHT LINES, Inc. MATTHEWS v. HENNIS FREIGHT LINES, Inc.
• Court: United States State Supreme Court of North Carolina

Page 25

72 S.E.2d 25

236 N.C. 72

COX, v. HENNIS FREIGHT LINES, Inc.

MATTHEWS v. HENNIS FREIGHT LINES, Inc.

No. 240

Supreme Court of North Carolina.

Aug. 22, 1952

J. T. Reece, Yadkinville, Wm. M. Allen, and Hoke F. Henderson, Elkin, for plaintiffs, appellees.

Folger & Folger, Mount Airy, for defendant, appellant.

ERVIN, Justice.

The court can not submit a case to the jury on a particular theory unless such theory is supported by both the pleadings and the evidence. Hooper v. Glenn, 230 N.C. 571, 53 S.E.2d 843; Ewing v. Kates, 196 N.C. 354, 145 S.E. 673; Pittman v. Tobacco Growers' Association, 187 N.C. 340, 121 S.E. 634; Frick Co. v. Boles, 168 N.C. 654, 84 S.E. 1017; Wilson v. Altantic Coast Line Railroad Co., 142 N.C. 333, 55 S.E. 257. In ascertaining whether a pleading upholds a theory, the court construes the allegations of the pleading with liberality in favor of the pleader with a view to presenting the case on its real merits. G.S. § 1-151; Lyon v. Atlantic Coast Line R. Co., 165 N.C. 143, 81 S.E. 1. In determining the sufficiency of evidence to sustain the theory of the complaint and to withstand the motion of the defendant for a compulsory nonsuit, the court interprets the evidence in the light most favorable to the plaintiff. Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757, 17 A.L.R.2d 881; Higdon v. Jaffa, 231 N.C. 242, 56 S.E.2d 661; Potter v. National Supply Co., 230 N.C. 1, 51 S.E.2d 908; Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488. In performing this task, the court bears in mind that the credibility of witnesses and the weight to be given to their testimony are matters within the province of the jury, and that the jury may accept as true a part of the testimony offered by a party and reject as false the remainder of such testimony. Graham v. North Carolina Butane Gas Co., supra; Casada v. Ford, 189 N.C. 744, 128 S.E. 344; Hadley v. Tinnin, 170 N.C. 84, 86 S.E. 1017; Maynard v. Sears, 157 N.C. 1, 72 S.E. 609; Newby v Edwards, 153 N.C. 110, 68 S.E. 1062; State v. Smallwood, 75 N.C. 104.

When the pleadings and the evidence in the cases now before us are tested by these rules, it is manifest that they support two theories of recovery. These theories are somewhat alternative in character, and are summarized in the numbered paragraphs set forth below:

1. The driver of the defendant's tractor-trailer combination was guilty of negligence in that he failed to stop in obedience to a red traffic light as commanded by the ordinance, and his negligence in this respect proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews.

2. Marvin Matthews drove the Chevrolet automobile into the intersection first and undertook to proceed straight through it ahead of the tractor-trailer combinatin, whose driver could observe the prior entry and occupancy of the intersection by the Chevrolet car. Notwithstanding this, the driver of the tractor-trailer combination immediately proceeded onto the intersection without permitting the Chevrolet automobile to clear the intersection or its pathway thereon. In so doing, the driver of the tractor-trailer combination was negligent in that he failed to maintain a proper lookout, or in that he failed to keep his vehicle under reasonable control, or in that he drove his vehicle at a speed greater than was reasonable and prudent under the conditions then existing. The negligence of the driver of the tractor-trailer combination in one or more of these respects, either of itself or in conjunction with concurrent negligence on the part of Marvin Matthews, proximately caused the death of Patty Matthews Cox and the personal injury of Lethie Matthews, irrespective of the color of the traffic light confronting the driver of the tractor-trailer combination at the time of his entry into the intersection.

These theories rest upon substantial legal foundations. The legislature has decreed in express terms that 'local authorities shall have power to provide by ordinances for the regulation of traffic by means of * * * signaling devices on any portion of the highway where traffic is heavy or continuous '. G.S. § 20-169. In consequence, the Town of Mount Airy acted within the limits of its authority as a municipal corporation in enacting its ordinance and in installing its automatic traffic control signals. Since the ordinance is designed to guard the safety of persons using the public streets of the municipality, a motorist is negligent as a matter of law if he fails to stop in obedience to a red traffic light as required by the ordinance, and his negligence in that particular is actionable if it proximately causes the death or injury of another. Boles v. Hegler, 232 N.C. 327, 59 S.E.2d 796; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Dillon v. City of Winston-Salem, 221 N.C. 512, 20 S.E.2d 845; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311; King v. Pope, 202 N.C. 554, 163 S.E. 447; Wolfe v. Independent Coach Line, 198 N.C. 140, 150 S.E. 876; Wolfe v. Baskin, 137 Ohio St. 284, 28 N.E.2d 629. The mere fact that the operator of a motor vehicle may have a green light facing him as he approaches and enters an intersection where traffic is regulated by automatic traffic control signals does not relieve him of his legal duty to maintain a proper lookout, to keep his vehicle under reasonable control, and to drive his vehicle at a speed which is reasonable and prudent under existing conditions, or exonerate him from legal liability for the death or injury of another proximately resulting from his failure to perform his legal duty in one or more of these respects. Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361; Sebastian v. Horton Motor Lines, 213 N.C. 770, 197 S.E. 539; Rose v. Campitello, 114 Conn. 637, 159 A. 887; Davis v. Dondanville, 107 Ind.App. 665, 26 N.E.2d 568; Landess v. Mahler, 295 Ill.App. 498, 15 N.E.2d 13; Capillon v. Lengsfield, La. App., 171 So. 194; McCormick & Co. v. Cauley, La.App., 168 So. 783; United States Fidelity & Guaranty Co. v. Continental Baking Co., 172 Md. 24, 190 A. 768; Shea v. Judson, 283 N.Y. 393, 28 N.E.2d 885; Schmidt v. City Ice & Fuel Co., 60 Ohio.App. 29, 19 N.E.2d 514; Radobersky v. Imperial Volunteer Fire Dept.,368 Pa. 235, 81 A.2d 865; Wilson v. Koch, 241 Wis. 594, 6 N.W.2d 659.

These things being true, the court rightly refused to nonsuit the actions. In reaching this conclusion, we do not overlook the circumstance that the first theory of recovery presented by plaintiffs is defectively stated in their pleadings. The complaints do not allege, as they ought, that the automatic traffic control signals at the intersection involved in the tragedy were maintained and operated under an ordinance of the Town of Mount Airy. Stewart v. Yellow Cab Co., 225 N.C. 654, 36 S.E.2d 256. It appears, however, that the defendant sets forth this material fact in its answers in complete detail. As a consequence, the rule that a defective pleading may be aided by the allegations of the adverse party applies. Under this rule, the answer of a defendant aids the complaint, and cures an omission if it affirmatively alleges a material fact not alleged by the plaintiff. Ricks v. Brooks, 179 N.C. 204, 102 S.E. 207; Harvell v. Weldon Lumber Co., 154 N.C. 254, 70 S.E. 389; Bank of Tarboro v. Fidelity & Deposit Co., 126 N.C. 320, 35 S.E. 588, 83 Am.St.Rep. 682; Whitley v. Southern Railroad Company, 119 N.C. 724, 25 S.E. 1018; Lockhart v. Bear, 117 N.C. 298, 23 S.E. 484; Willis v. Branch, 94 N.C. 142; Johnson v. Finch, 93 N.C. 205; Pearce v. Mason, 78 N.C. 37; Garrett v. Trotter, 65 N.C. 430.

Counsel for the defendant aptly tendered to the court written requests for these special instructions:

1. The operator of defendant's truck was not under the duty of anticipating negligence on the part of the operator of the Matthews car and in the absence of anything which should have given him notice that the operator (of the Matthews car) was not going to stop at the intersection * * * , the operator of defendant's truck was entitled to assume and to act on the assumption that the operator of the Matthews car would exercise ordinary care for his own safety and the safety of the occupants of his car and bring his car to a stop before entering the intersection, if the signaling device had a red or stop signal at the intersection at the time the Matthews car approached and entered the intersection.

2. The court charges you that if the signal light was green facing the driver of defendant's truck * * * at the time defendant's driver approached the intersection, and there was nothing to * * * prevent the driver of the Matthews car from seeing the truck as it approached the intersection, there would be no duty on defendant's driver to anticipate that Matthews would fail to stop as required by the * * * ordinance, and * * * the signal light, and in the absence of anything which gave or should have given notice to the contrary, defendant's driver was entitled to assume and to act on the assumption * * * that Matthews would not only exercise ordinary care for his own safety as well as (that of) those riding in his car, but would act in obedience to the ordinance * * * and the signaling device * * * before entering the intersection.

Instead of giving such instructions, the court charged the jury on this aspect of the controversy in this language: 'As long as the operator of a motor vehicle upon a public street or highway is exercising due care, he has the right to rely upon signal devices erected and maintained by a municipal corporation. As long as the operator of a motor vehicle upon a public street is in the exercise of due care, he has the right to assume that others who are operating along the highway will obey the laws and ordinances regulating the operation of motor vehicles, unless there are circumstances to put him on notice to the contrary. If Gerald Fisher Hamer, the defendant's driver, was in the...