Dreher v. Divine

• Citation: 135 S.E. 29
• Decision Date: 20 October 1926
• Docket Number: (No. 291.)
• Parties: DREHER v. DIVINE.
• Court: United States State Supreme Court of North Carolina

135 S.E. 29

(192 N.C. 325)

DREHER

v.DIVINE.

(No. 291.)

Supreme Court of North Carolina.

Oct. 20, 1926.

Appeal from Superior Court, New Hanover County; Midyette, Judge.

Action by J. H. Dreher against M. W. Divine, trading as M. W. Divine & Co. From a verdict in favor of defendant, plaintiff appeals. No error.

Civil action to recover for damage to plaintiff's automobile, alleged to have been caused by the negligence of the driver of defendant's truck in failing properly to yield the road on signal from plaintiffs agent.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury, and, from a verdict on the first issue in favor of defendant, the plaintiff appeals, assigning errors.

Herbert McClammy, of Wilmington, for appellant.

Wright & Stevens, of Wilmington, for appellee.

STACY, C. J. On May 19, 1923, defendant's truck, loaded with furniture and operated by an employee, was moving along the public highway from Wilmington to Wrightsville Sound, when plaintiff's automobile, operated by a Mr. Marsh, was wrecked as it ran into the ditch alongside the road when the driver undertook to pass the truck on the left, approaching it from the rear. The automobile did not strike the truck, nor the truck the automobile. It is alleged that by reason of the failure of the driver of the truck properly to yield the road, the driver of the automobile was forced to run into the ditch in order to avoid striking the truck.

The driver of the defendant's truck testified that he could not see a car or vehicle approaching from the rear because of the heavy load of furniture, and that he was prevented from hearing, and did not hear, the signal given by the operator of plaintiff's car, if, indeed, it were given, because of the noise made by the truck.

It is the position of the plaintiff that the operator of the defendant's truck was guilty of negligent driving, on his own testimony, under the following clause In C. S. § 2617:

"Any person so operating a motor vehicle shall, on overtaking any such horse, draft animal, or other vehicle, pass on the left side thereof, and the rider or driver of such horse, draft animal, or other vehicle shall, as soon as practicable, turn to the right so as to allow free passage on the left."

Plaintiff says it was the absolute duty of the driver of the truck, under this provision of the statute, to know that plaintiff's car was approaching from the rear, and that, if he did not hear the signal, it was his duty to hear it, or to keep a lookout for approaching vehicles from the rear, and to turn to the right so as to allow plaintiff's car free passage on the left, failing in which he should be held liable for all damage or injury proximately flowing therefrom. We are unable to assent to this interpretation of the statute. We cannot think the Legislature intended to require the driver of a vehicle, Janus-like, to keep the same constant lookout backward as in the range of vision looking ahead. Delfs v. Dunshee, 143 Iowa, 3S1, 122 N. W. 236; Watkins v. Byrnes, 117 Kan. 172, 230 P. 1048; Strever v. Woodard, 160 Iowa, 332; 141 N. W. 931, 46 L. R. A. (N. S.) 644:

It is true a slower vehicle has no right to obstruct a faster one desiring to pass, if the situation be such as to permit the rear one to pass in safety. And when the driver of a faster conveyance desires to pass a slower one, it is the duty of the driver of the one in advance, upon notice of the approach of the rear one and that it desires to pass, to turn to the right so as to allow free passage on the left, "as soon as practicable, " according to the reasonable appearances of the situation. Morrison v. Clark, 196 Ala. 670, 72 So. 305. But the driver of the forward vehicle cannot be expected to turn to the right until he is apprised of the approach of the rear one and that its driver desires to pass. Dunkelbeck v. Meyer, 140 Minn. 283, 167 N. W. 1034. The statute, we think, requires one to turn to the right when another overtakes him on the highway and indicates a desire to pass, but only after notice of such...