Ford v. Smith, 6927SC510

• Decision Date: 19 November 1969
• Docket Number: No. 6927SC510,6927SC510
• Citation: 170 S.E.2d 548,6 N.C.App. 539
• Parties: James M. FORD v. Albert SMITH.
• Court: North Carolina Court of Appeals

Page 548

170 S.E.2d 548

6 N.C.App. 539

James M. FORD v. Albert SMITH.

No. 6927SC510.

Court of Appeals of North Carolina.

Nov. 19, 1969.

Childers & Fowler, by Henry L. Fowler, Jr., Mount Holly, for plaintiff appellant.

Hollowell, Stott & Hollowell, by Grady B. Stott, Gastonia, for defendant appellee.

GRAHAM, Judge.

The parties do not dispute the fact that sufficient evidence was presented to take the case to the jury on the issue of defendant's actionable negligence. Therefore, the only question before us is whether plaintiff's evidence establishes as a matter of law his own negligence as one of the proximate causes of his injury. Jernigan v. Atlantic Coast Line R.R. Co., 275 N.C. 277, 167 S.E.2d 269.

The judgment of nonsuit cannot be sustained unless the plaintiff's evidence, considered in the light most favorable to him, so clearly establishes his own negligence as one of the proximate causes of his injury that no other reasonable inference may be drawn therefrom. Bowen v. Gardner, 275 N.C. 363, 168 S.E.2d 47; Anderson v. Carter, 272 N.C. 426, 158 S.E.2d 607; Black v. Wilkinson, 269 N.C. 689, 153 S.E.2d 333.

Evidence of the plaintiff, taken in the light most favorable to him, tended to show as follows: On 11 August 1967, the plaintiff was operating a motorcycle south on Main Street in Mount Holly. When he got to the intersection of Charlotte Avenue and Main Street, the traffic control light at the intersection was red for traffic moving along Main Street. Plaintiff brought his motorcycle to a stop behind a car that was already stopped for the light and signaling for a left turn. There was only one lane for traffic traveling south on Main Street, but at the intersection there was sufficient room for the plaintiff to safely pass to the right of the turning vehicle and clear the intersection. When the light changed to green, the car ahead of the plaintiff moved forward for about 8 feet into its turn. The plaintiff proceeded around the turning vehicle on the right at a speed of from 5 to 10 miles an hour. As the plaintiff entered the intersection the front of his motorcycle collided with the right side of the defendant's car which was moving west through the intersection along Charlotte Avenue. A police officer was standing about 60 feet from the intersection and witnessed the collision. He stated that the light controlling traffic along Charlotte Avenue changed from yellow to red when the defendant's car was 10 to 15 feet east of the intersection and that defendant's car entered the intersection on a red light. The left-turning car ahead of the plaintiff stopped just as the plaintiff entered the intersection and the collision occurred. The plaintiff testified:

'After I got on past the car that I said was giving a left turn signal, that's when I looked to my left and saw Mr. Smith's car the first time. At that time Mr. Smith's car was coming into the intersection. * * * I don't know how far from my motorcycle Mr. Smith's car was when I first saw it. I guess it was about five or six feet. I tried to stop when I saw he was that close; I hit the brakes on the motorcycle.'

The plaintiff further testified that he could not see the defendant's car until he went past the car making the left turn.

Defendant contends that plaintiff's act of passing to the right of the left turning vehicle establishes actionable negligence on his part sufficient to justify the nonsuit. However, the theory of the defendant's answer is that it was the plaintiff who 'ran the red light' and no allegation appears asserting the act of passing on the right as an act of negligence. Acts of contributory negligence not alleged in the answer should be ignored. Bowen v. Gardner, Supra; Maynor v. Pressley, 256 N.C. 483, 124 S.E.2d 162; Rodgers v. Thompson, 256 N.C. 265, 123 S.E.2d 785; Skinner v. Jernigan, 250 N.C. 657, 110 S.E.2d 301. Even if alleged, it is our opinion that the act of passing on the right under the circumstances of this case would not compel a nonsuit. 'Generally, the overtaking driver is justified in proceeding along the right side of the highway in attempting to pass the forward vehicle where the driver of the latter gives a left-turn signal or pulls over to the left as though intending to make a left turn.' 38 A.L.R.2d 109, 117, Annotation.

G.S. 20--149(a) requires the driver of a vehicle in overtaking and passing another vehicle proceeding in the same direction, to pass at least two feet to the left thereof. In commenting on that statute in the case of Maddox v. Brown, 232 N.C. 542, 547, 61 S.E.2d 613, 616, our Supreme Court stated:

'(N)otwithstanding the provisions of this statute, a motorist may, in the exercise of ordinary care, pass another vehicle, going in the same direction, on the right of the overtaken vehicle when the driver of that vehicle has given a clear signal of his intention to make a left turn and has left sufficient space to the right to permit the overtaking vehicle to pass in safety.'

This rule, however, does not mean that the act of passing on the right of a left turning vehicle at an intersection may not be accomplished in such a manner as to constitute negligence. Ward v. Cruse, 236 N.C. 400, 72 S.E.2d 835, 38 A.L.R.2d 109. The question of negligence under such circumstances is for the jury to determine under...