Day v. Davis, 364
| Decision Date | 14 December 1966 |
| Docket Number | No. 364,364 |
| Citation | 151 S.E.2d 556,268 N.C. 643 |
| Court | North Carolina Supreme Court |
| Parties | Eddie F. DAY v. Patricia Ann DAVIS, a Minor, and William B. Davis. |
Sasser & Duke and Herbert B. Hulse, Goldsboro, for plaintiff-appellant.
Dees, Dees, Smith & Powell, Goldsboro, for defendant-appellees.
Plaintiff challenges the trial judge's instructions in that he failed to properly relate the doctrine of sudden emergency to the issue of contributory negligence. First, we must determine if plaintiff was entitled to any instructions on the doctrine.
This Court, considering this doctrine in the case of Cockman v. Powers, 248 N.C. 403, 103 S.E.2d 710, stated: "One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made.' * * * True, one cannot escape liability for acts otherwise negligent because done under the stress of an amergency if such emergency was caused, wholly or in material part, by his own negligent or wrongful act.'
There is a lack of evidence or conflicting evidence regarding all the allegations of contributory negligence except as to the alleged violation of G.S. § 20--141(c), which provides in part as follows: 'The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection * * * or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care.' There is a line of cases in North Carolina holding that the violation of G.S. § 20--141(c) constitutes negligence Per se. However, these cases hold further that in order for there to be actionable negligence such violation must be a proximate cause of the injury in suit, including the essential element of foreseeability. Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205; Reynolds v. Murph, 241 N.C. 60, 84 S.E.2d 273.
It is also well-established law in North Carolina that the driver of a vehicle on a dominant highway is not under duty to anticipate that a driver on a servient highway will fail to stop as required by statute before entering the intersection, and, in the absence of anything which gives notice to the contrary, may assume and act on the assumption, even to the last moment, that the operator along the servient highway will stop in obedience to the statute, and will not enter the intersection until he ascertains, in the exercise of due care, that he can do so with reasonable assurance of safety. Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17.
The duty of the plaintiff to decrease his speed was governed by the duty of all persons to use 'due care,' and is tested by the usual legal requirements and standards such as proximate cause. In order for there to be any legal significance in a civil action for violation of the statutes, it must be shown that the violation proximately caused the injury. Cassetta v. Compton, 256 N.C. 71, 123 S.E.2d 222.
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Davis v. Imes
...of the charge was error in view of the principles set forth in Blackwell v. Butts, 278 N.C. 615, 180 S.E.2d 835 (1971); Day v. Davis, 268 N.C. 643, 151 S.E.2d 556 (1966); Equipment Co. v. Hertz Corp. and Contractors, Inc. v. Hertz Corp., Supra; King v. Powell, 252 N.C. 506, 114 S.E.2d 265 (......
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...negligence, was a proximate cause of the accident, before finding that the Todds were contributorily negligent. Day v. Davis, 268 N.C. 643, 151 S.E.2d 556, 559 (1966). Furthermore, the jury would also have to find that Mrs. Todd had opportunity to realize that her husband was intoxicated an......
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Long v. Harris, No. COA99-454.
...of the evidence ... show[ed] that [defendant] by his negligence brought about or contributed to the emergency," Day v. Davis, 268 N.C. 643, 647, 151 S.E.2d 556, 559 (1966). The issue thus was a "matter[ ] ... for jury determination under proper instructions...." Id. In the foregoing regard,......
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