Davis v. Imes

• Decision Date: 23 February 1972
• Docket Number: No. 7219SC116,7219SC116
• Citation: 13 N.C.App. 521,186 S.E.2d 641
• Parties: George W. DAVIS, Administrator of the Estate of Alice Burton Davis v. William L. IMES.
• Court: North Carolina Court of Appeals

Page 641

186 S.E.2d 641

13 N.C.App. 521

George W. DAVIS, Administrator of the Estate of Alice Burton Davis v. William L. IMES.

No. 7219SC116.

Court of Appeals of North Carolina.

Feb. 23, 1972.

Woodson, Hudson, Busby & Sayers by Donald D. Sayers, Salisbury, for plaintiff-appellee.

Kluttz & Hamlin by Lewis P. Hamlin, Jr., Salisbury, for defendant-appellant.

MALLARD, Chief Judge.

The defendant's first contention is that the trial court erred in failing to direct a verdict or enter judgment notwithstanding the verdict for defendant, on the ground that plaintiff's intestate was guilty of contributory negligence as a matter of law. This contention is without merit.

'Since the burden of proof on the issue of contributory negligence is upon the defendants, a motion for judgment of involuntary nonsuit upon that ground should be allowed only when the plaintiff's evidence, considered alone and taken in the light most favorable to him, together with all inferences favorable to him which may reasonably be drawn therefrom, so clearly establishes the defense that no other conclusion can reasonably be drawn. Cowan v. Transfer Co., 262 N.C. 550, 138 S.E.2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Johnson v. Thompson, 250 N.C. 665, 110 S.E.2d 306; Morrisette v. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Strong's N.C. Index, Negligence, § 26, and cases there cited.' Raper v. Byrum, 265 N.C. 269, 144 S.E.2d 38 (1965).

In the case before us, the evidence for the plaintiff tended to show the following: Mrs. Davis, a woman of 72 years of age, died as a result of injuries received in an accident which occurred at the intersection of a private driveway and Needmore Road, a sixteen-foot-wide rural paved road (No. 1984) in Rowan County. Plaintiff's witness Hubert Kyles testified that he saw Mrs. Davis approach the end of the driveway and stop, look in both directions, pull out into Needmore Road and proceed in an easterly direction. He also testified that he heard the defendant Imes' automobile approaching in the distance, its engine making a 'very high-pitched' noise, and observed it traveling west on Needmore Road for a distance of approximately 200 feet until it collided 'almost head-on' with Mrs. Davis' automobile, which had by then completed its entry into her right-hand lane of Needmore Road and had proceeded east 25 or 30 feet to the point of the collision. It was Kyles's opinion that the speed of the defendant's automobile at the time he observed it was 80 miles per hour. Another witness, Donald Kyles, testified that he too had observed the accident, had seen and heard the defendant's automobile prior to the collision, and had formed the opinion that its speed was at 'about seventy.' The plaintiff's evidence indicated that Mrs. Davis was in her own lane of travel; that is, the south lane proceeding east, and that the Imes' vehicle had crossed the center point of the road; that is, had crossed from the north lane into the south lane proceeding west, when the collision occurred, and that there were no skid marks at or near the point of collision.

In his complaint, the plaintiff alleged that the defendant was negligent in that:

'(a) He operated an automobile upon a highway carelessly and heedlessly in willful and wanton disregard of the rights and safety of others and without due caution and circumspection and at a speed and in a manner so as to endanger or be likely to endanger persons and property, in violation of G.S. § 20--140.

(b) He operated an automobile upon a public highway at a speed greater than was reasonable and prudent under the conditions then existing in violation of G.S. § 20--141(a).

(c) He operated an automobile upon a public highway at a rate of speed in excess of 55 miles per hour, in violation of G.S. § 20--141(b).

(d) He failed to reduce speed when approaching and going around a curve.

(e) He failed to reduce speed when approaching a hillcrest.

(f) In that upon a highwy of sufficient width, he failed to drive the automobile upon the right half of the highway and as closely as possible to the right-hand edge or curb thereof, in violation of G.S. § 20--146.

(g) In that when approaching an automobile proceeding in the opposite direction he failed to pass to the right of the plaintiff's intestate's automobile and failed to give to the plaintiff's intestate at least one-half of the main traveled portion of the roadway, in violation of G.S. § 20--148.

(h) He drove on the public highways without keeping a proper lookout, without paying proper attention to his driving and without keeping the vehicle which he was driving under proper control.'

In his answer, the defendant alleged that the plaintiff's intestate was contributorily negligent in that:

'(a) In emerging from a private driveway, she failed to yield the right of way to traffic on the main traveled highway, including this defendant.

(b) She failed to keep a proper lookout and failed to keep her vehicle under proper control.

(c) She drove her vehicle into the highway carelessly and heedlessly in willful and wanton disregard of the rights and safety of others.

(d) She drove her vehicle on the highway without due caution and circumspection and at a speed and in a manner so as to endanger or be likely to endanger, persons and property.'

Defendant also alleged the same acts of negligence on the part of the plaintiff's intestate as the basis for his counterclaim. In reply to this counterclaim, the plaintiff denied negligence and alleged contributory negligence of the defendant as a defense.

It is the duty of one proceeding along a public highway to maintain a proper lookout and to exercise due care to avoid colliding with vehicles entering the highway from private premises. 60A C.J.S. Motor Vehicles § 347. Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111 (1953).

The violation of G.S. § 20--141, G.S. § 20--146 or G.S. § 20--148, relating to speed restrictions, driving on the right side of the road and meeting other vehicles, constitutes negligence (although such negligence is not actionable unless it is the proximate cause of the injuries complained of). See Lassiter v. Williams, 272 N.C. 473, 158 S.E.2d 593 (1968); Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968); Smart v. Fox, 268 N.C. 284, 150 S.E.2d 403 (1966); Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846 (1966); Raper v. Byrum, Supra.

On the other hand, G.S. § 20--156(a) requires that 'the driver of a vehicle entering a public highway from a pivate road or drive shall yield the right-of-way to all vehicles approaching on such public highway.' Furthermore, '(i)n order to comply with this statute, a driver entering a public highway from a private drive is required to look for vehicles approaching on such highway, to look at a time when the precaution may be effective, to yield the right-of-way to vehicles traveling on the highway, and to defer entry until the movement may be made in safety. Gantt v. Hobson, 240 N.C. 426, 82 S.E.2d 384; Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111.' Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., 256 N.C. 277, 123 S.E.2d 802 (1962). See also, Smith v. Nunn, 257 N.C. 108, 125 S.E.2d 351 (1962); 60A C.J.S. Motor Vehicles § 345.

The defendant appellant contends, however, that we should find from a review of the evidence in the present case that the plaintiff's intestate was contributorily negligent as a matter of law, apparently because she had an 'unqualified duty to yield to traffic on the public highway.' We do not agree. The evidence, viewed in the light most favorable to the plaintiff, tends to show that Mrs. Davis exercised due care before entering the paved road and had attained her own lane of proposed travel before being struck by the defendant. The plaintiff's evidence also showed that, looking eastward from the private drive, in the direction from which the defendant was approaching, Mrs. Davis had an unobstructed view of the road for about 100 feet and a partially obstructed view for another 25 to 50 feet beyond. If, as an eyewitness to the accident testified, the defendant was driving his vehicle at 80 miles per hour just prior to the collision, he would have covered the portion of the road visible to Mrs. Davis east from the private driveway in just slightly over one second.

In his brief the appellant relies upon the cases of Blackwell v. Butts, 10 N.C.App 347, 178 S.E.2d 644 (1971), and Garner v. Pittman, Supra. Blackwell was reversed by the Supreme Court in 278 N.C. 615, 180 S.E.2d 835 (1971).

In Blackwell, the Supreme Court also distinguished Garner v. Pittman, Supra, (relied upon by the defendant in the present case) and the case of Warren v. Lewis, 273 N.C. 457, 160 S.E.2d 305 (1968), and we believe that the distinctions drawn are appropriate to the present case as well. In Garner, it appeared that the vehicle containing the plaintiff was entering a street from forty to sixty feet wide, that the driver had an unobstructed view of the dominant highway for 200 to 300 feet, that the speed of the defendant's automobile was only fifty miles per hour, reduced to 30 or 35 miles per hour before the collision, and that it struck the emerging automobile in the side, before it had attained its proper lane of travel. In Warren, it appeared that the plaintiff had an unobstructed view in the direction from which the defendant's automobile was approaching for 400...