Hawes v. Atlantic Refining Co.

• Decision Date: 06 January 1953
• Docket Number: No. 597,597
• Court: North Carolina Supreme Court
• Parties: HAWES, v. ATLANTIC REFINING CO. et al.

Page 17

74 S.E.2d 17

236 N.C. 643

HAWES, v. ATLANTIC REFINING CO. et al.

No. 597

Supreme Court of North Carolina.

Jan. 6, 1953

Poisson, Campbell & Marshall, and Elbert A. Brown, Wilmington, for plaintiff appellee.

James & James, Wilmington, for defendants appellants.

WINBORNE, Justice.

Appellants present for decision on this appeal two questions: (1) Did the trial court err: (1) In overruling defendants' motions aptly made for judgments as of nonsuit under G.S. § 1-183? (2) In charging the jury in the respects covered by exceptions thereto?

As to the first question: Appellants, the defendants, contend, in their brief, that nonsuit should have been allowed for that plaintiff was not only negligent, but that his negligence was the sole proximate cause of the collision and such resulting injury and damage as he may have sustained. But taking the evidence shown in the case on appeal, in the light most favorable to plaintiff, and giving to him the benefit of every reasonable intendment and inference to be drawn therefrom, tested by pertinent statutes of this State, and decisions of this Court, we hold that the evidence is not so clear in meaning as to sustain defendants' contention.

In this connection it is appropriate to consider the legal rights and obligations of the respective parties at the time, and under the circumstances of the collision here involved.

The speed statute, G.S. § 20-141, as rewritten in Section 17, Chapter 1067 of 1947 Session Laws of North Carolina, in so far as pertinent to case in hand, declares:

'(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.

'(b) Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of the following speeds:

'1. Twenty miles per hour in any business district;

'2. Thirty-five miles per hour in any residential district;

'3. * * *

'4. Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this Subsection for passenger cars * * *.

'(c) 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 * * * 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 in compliance with legal requirements and the duty of all persons to use due care.'

And this statute also provides in Subsection (e) that: 'The foregoing provisions of this section shall not be construed to relieve the plaintiff in any civil action from the burden of proving negligence upon the part of the defendant as the proximate cause of an accident.'

And it is a general rule of law, even in the absence of statutory requirement, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is encumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highway. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators so using a highway, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am.Jur. Automobiles, §§ 165, 166, 167. Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Bobbitt v. Haynes, 231 N.C. 373, 57 S.E.2d 361.

Furthermore, 'one is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption that others will exercise care for their own safety.' 45 C.J. 705; 65 C.J.S., Negligence, § 15; Hobbs v. Queen City Coach Co., supra; Bobbitt v. Haynes, supra, and cases there cited.

Moreover, the statute, G.S. § 20-158(a), prescribes that the State highway and public works commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers to come to full stop before entering or crossing such designated highway, and that wherever any such signs have been so erected, it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. And the same section, G.S. § 20-158(a), also declares that 'No failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence. ' See Sebastion v. Motor Lines, 213 N.C. 770, 197 S.E. 539; Reeves v. Staley, supra; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Nichols v. Goldston, 228 N.C. 514, 46 S.E.2d 320; Lee v. Robertson Chemical Corp., 229 N.C. 447, 50 S.E.2d 181; Bobbitt v. Haynes, supra; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658.

Indeed, the operator of an automobile, traveling upon a designated main traveled or through highway and approaching an intersecting highway, is under no duty to anticipate that the operator of an automobile approaching on such intersecting highway will fail to stop as required by the statute, and, in the absence of anything which gives, or should give notice to the contrary, he will be entitled to assume and to act upon the assumption, even to the last moment, that the operator of the automobile on the intersecting highway will act in obedience to the statute, and stop before entering such designated highway. Reeves v. Staley, supra; Johnson v. Bell, supra.

On the other hand, the operator of an automobile traveling upon such intersecting highway and traversing a designated main traveled or through highway, is under no...