Ervin v. Cannon Mills Co.

• Decision Date: 11 April 1951
• Docket Number: No. 383,383
• Citation: 233 N.C. 415,64 S.E.2d 431
• Parties: ERVIN, v. CANNON MILLS CO. et al.
• Court: North Carolina Supreme Court

Page 431

64 S.E.2d 431

233 N.C. 415

ERVIN, v. CANNON MILLS CO. et al.

No. 383

Supreme Court of North Carolina.

April 11, 1951

Guy T. Carswell, and Shannonhouse, Bell & Horn, Charlotte, Burke & Burke, Taylorsville, for plaintiff, appellee.

Hartsell & Hartsell, Concord, Scott & Collier, Statesville, for defendants, appellants.

DEVIN, Justice.

The only assignment of error brought forward in defendants' appeal is the denial of their motion for judgment of nonsuit.

The determination of this question requires consideration of the evidence offered in accord with the rule that it be viewed in the light most favorable for the plaintiff, and that he be given the benefit of every reasonable inference to be drawn therefrom. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Graham v. North Carolina Butane Gas Co., 231 N.C. 680, 58 S.E.2d 757. On this motion not only will the evidence offered by plaintiff be considered, but also that offered by defendants which is favorable to the plaintiff, or which may be used to clarify and explain plaintiff's evidence. Harrison v. North Carolina R. R. Co., 194 N.C. 656, 140 S.E. 598; Gregory v. Travelers Ins. Co., 223 N.C. 124, 25 S.E.2d 398, 147 A.L.R. 283. All the facts in evidence which tend to support plaintiff's cause of action are assumed to be true. Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307.

The evidence offered tended to show that on the morning of October 4, 1946, about 10 a. m. the truck of defendant Mills Company was being driven by its employee, defendant Allen, in the regular course of his employment, westward along McGill Street in the City of Concord. The street was paved, 30 feet wide, straight and practically level, with slight down grade westward. The street crossed the main line of Southern Railway and a spur track, and then Bruton Street, and 40 or 50 feet further, on the south side of McGill Street, and to the truck driver's left, was the entrance into the plant of the defendant Mills Company, into which defendant Allen intended to drive the truck. The day was clear and the pavement dry. Proceeding along the street in the same direction behind the truck was the plaintiff's intestate riding a motorcycle. The truck was being driven at 20 or 25 miles per hour and was slowed down to make a left turn across the street. The defendant Allen on his examination said he gave the left turn signal, extending his hand and arm out of the truck cab window, and then 'angled' across the street toward the entrance to the driveway, so that the distance across instead of being 15 feet was 25 or 30 feet, and that after giving the signal for left turn as soon as he began to turn he withdrew his hand in order to hold the wheel of the truck with both hands to make the turn. He said, 'When I got ready to turn I took my hand in * * * I did not keep my hand out until the impact. I had brought it back in. You can't make the turn with one hand. ' In making the left turn the truck did not pass to the right of the point at which the center line of the mill driveway extended would intersect the center line of McGill Street. The truck had proceeded across the street to a point two to five feet from the south curb line of McGill Street, just east of the entrance to the driveway, when it was struck by the motorcycle of plaintiff's intestate. The left front bumper of the truck was knocked loose, the motorcycle damaged, and plaintiff's intestate so severely injured that as result he died five days later. There were marks on the pavement indicating the motorcycle had traveled from about the center of the street diagonally 30 feet to the point of impact, which was indicated by the appearance of dirt on the pavement. The officer who investigated the collision testified the defendant Allen stated at the time that he did not use his rear view mirror. And defendant Allen testified the truck was equipped with outside rear vision mirror, that he did not look out the back window of cab and did not see the motorcycle until the instant of impact; that he had looked back further east and seen nothing. 'But I didn't look back at the time I turned. ' Looking east, vision is unobscured 700 or 800 feet. It is 376 feet from the railroad track to the entrance to the Mill. Shortly before the collision the motorcycle was observed at the railroad crossing where it had momentarily stopped, and a witness testified that it then moved on going west with nothing unusual as to manner or speed.

The statute prescribes that the driver of a motor vehicle upon a highway 'before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, * * * and whenever the operation of any other vehicle may be affected by such movement, shall give a signal as required in this section, plainly visible to the driver of such other vehicle * * *. Left turn--hand and arm horizontal, forefinger pointing. All signals to be given from left side of vehicle during last fifty feet traveled. ' G.S. § 20-154.

It is also provided by statute that at an intersection the driver of a vehicle 'intending to turn to the left shall approach such intersection in the lane for the traffic to the right of and nearest to the center of the highway, and in turning shall pass beyond the center of the intersection, passing as closely as practicable to the right there of before turning such vehicle to the left. ' G.S. § 20-153. Banks v. Shepard, 230 N.C. 86, 52 S.E.2d 215; Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354. Violation of a public statute regulating the operation of motor vehicles on the highway is a breach of legal duty and constitutes negligence, but it does not afford ground for action unless it be the proximate cause of resultant injury. Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311.

From the evidence offered, the inference seems permissible that the driver of defendants' truck in making a left turn across the street on this occasion failed to give the left turn signal with his hand 'during last 50 feet traveled,' as according to his statement he extended his hand when he was 40 or 50 feet away from the driveway into the mill but withdrew his hand when he began to turn, or as he expressed it when he 'got ready to turn,' and that due to his 'angling' course across the street he began his trun 25 or 30 feet from the entrance. During that time he gave no signal. Though he estimated he kept his hand out about a 'minute and a half,' the short distance traveled at the rate given would indicate not more than a second or two of time could have been consumed. 'A statutory warning must be substantially complied with, in order to avoid the imputation of negligence. ' Huddy 3-4 sec. 53. It is the purview of the statute that the prescribed hand signal should be maintained for a sufficient length of time to enable the driver of the following vehicle to observe it and to understand therefrom what movement is intended. According to defendant Allen's testimony he did not pass to the right of the point where the line of the mill driveway extended would have intersected the center line of the street. There is thus some evidence the defendants did not comply in all respects with the provisions of the statute.

But on the motion for judgment of nonsuit the plaintiff is entitled to a favorable consideration of the evidence in another aspect. We do not regard the requirement in G.S. § 20-154, that a prescribed hand signal be given of intention to make a left turn in traffic, as constituting in all cases full compliance with the mandate also expressed in this statute that before turning from a direct line the driver shall first see that such movement can be made in safety, nor do we think the performance of...