Fonville v. Dixon
| Decision Date | 20 December 1972 |
| Docket Number | No. 7227SC678,7227SC678 |
| Citation | 16 N.C.App. 664,193 S.E.2d 406 |
| Court | North Carolina Court of Appeals |
| Parties | Florence T. FONVILLE, administratrix of Estate of Dr. J. S. Nathaniel Tross, Deceased v. Arson G. DIXON. |
Basil L. Whitener and Anne M. Lamm, Castonia, for plaintiff appellant.
Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., Gastonia, for defendant appellee.
Appellant's brief contains thirteen questions involved on the appeal, comprising two pages of the index of the brief and four pages on the brief. Appellant's attention is directed to Rule 27 1/2 of the Court of Appeals Rules of Practice, which provides that the first page of the appellant's brief shall be used for a Succinct statement of the questions involved on the appeal, which statement should not ordinarily exceed fifteen lines, And should never exceed one page. The rules of this Court are mandatory, not advisory.
Appellant's arguments 1, 3, and 4 concern alleged error in the trial court's failure to direct a verdict against the defendant on his counterclaim for damages, failure to set aside the verdict and grant a new trial, and error in entering the judgment.
Appellant's arguments 2 and 12 allege error in the court's submission of an issue on plaintiff's contributory negligence, and in charging the jury on G.S. § 20--141(h) (unreasonably slow speed).
Appellant's arguments 5 and 6 concern alleged error in the exclusion of testimony to the effect of plaintiff's injuries.
Appellant's argument number 11 asserts error in the trial court's instruction concerning plaintiff's damages.
Appellant's argument number 13 asserts that the trial court failed properly to explain the law arising upon the evidence in the case.
Appellant's arguments 7, 8, 9 and 10 assert error in exclusion of testimony as to defendant's negligence and error in the trial court's instruction as to the defendant's negligence. Since the issue of defendant's negligence was answered in appellant's favor, these latter arguments have no merit on appeal. Wooten v. Cagle, 268 N.C. 366, 150 S.E.2d 738 (1966) (); Brown v. Griffin, 263 N.C. 61, 138 S.E.2d 823 (1964) ().
Plaintiff appellant vigorously argued, however, that under no view of the evidence in this case could it be found that he was contributorily negligent; specifically, that the evidence did not support an instruction that if the jury should find plaintiff was driving at an unreasonaly slow speed, which slow speed was a proximate cause of plaintiff's injury, it should find against the plaintiff. Plaintiff's argument is untenable.
G.S. § 20--141(b1) provides:
'Except as otherwise provided in this Chapter, and except while towing another vehicle, and except when an advisory safe speed sign indicates a slower speed, it shall be unlawful to operate a passenger vehicle . . . upon the interstate and primary highway system at less than the following speeds:
(2) Forty-five (45) miles per hour in any speed zone of sixty (60) miles per hour or greater.
In all civil actions, violations of this subsection relating to minimum speeds shall not constitute negligence per se.'
G.S. § 20--141(h) provides:
'No person shall operate a motor vehicle on the highway at such a slow speed as to impede the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation because of mechanical failure or in compliance with law; . . .'
Generally, and without regard for the moment to the above statutes, the law provides that when a motorist operates his vehicle on the public highway where others are apt to be, his rights are relative. Williams v. Henderson, 230 N.C. 707, 55 S.E.2d 462 (1949). The relative duties automobile drivers owe one another when they are traveling along a highway in the same direction are governed ordinarily by the circumstances in each case. Racine v. Boege, 6 N.C.App. 341, 169 S.E.2d 913 (1969).
In the absence of anything which would alert him to danger, the law does not require a motorist to anticipate specific acts of negligence on the part of another, but he is entitled to assume and to act on the assumption that others will exercise due care for their own safety. Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849 (1957).
In the instant case, we are not concerned with the negligence of the defendant. He was negligent, and the jury so found. We are concerned with whether where was sufficient evidence of negligence on the part of Dr. Tross to go to the jury. To answer this we are required to take the evidence most favorable to the defendant. We think the evidence is sufficient to warrant submission of an issue of plaintiff's contributory negligence, and to withstand a motion for directed verdict on defendant's counterclaim under the authority of McClellan v. Cox, 258 N.C. 97, 128 S.E.2d 10 (1962). In McClellan it was held that a motorist, who was proceeding in the righthand lane, was liable for injuries sustained in an accident which occurred when he cut across to the passing lane without giving a signal and began slowing down in front of the plaintiff, who was proceeding in the passing lane, and whose automobile struck the rear of the other automobile.
Specifically with reference to G.S. § 20--141(h), there are no North Carolina cases reported which have held the plaintiff contributorily negligent for traveling at an excessively slow speed, but many cases can be found from other jurisdictions to support this result. See Annot., 66 A.L.R.2d 1194 (1959).
It has been held in constructing statutes identical to G.S. § 20--141(h) that the purpose of such statutes is rooted in recognition that the slow driver may be the cause of fatal highway accidents as well as the fast driver. Hageman v. Townsend, 144 Mont. 510, 398 P.2d 612 (1965); Bentzler v. Braun, 34 Wis.2d 362, 149 N.W.2d 626 (1967).
Where the evidence tends to show that the plaintiff or defendant was traveling at a slow speed, a jury question is presented whether under the circumstances the speed was so slow as to impede reasonable movement of traffic, and whether there was justification for the slow speed. Griffin v. Illinois Bell Telephone Company, 34 Ill.App.2d 87, 180 N.E.2d 228 (1962); Netterville v. Crawford, 233 Miss. 562, 103 So.2d 1 (1958).
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