Henderson v. Henderson

• Decision Date: 24 February 1954
• Docket Number: No. 102,102
• Citation: Henderson v. Henderson, 239 N.C. 487, 80 S.E.2d 383 (N.C. 1954)
• Parties: HENDERSON, v. HENDERSON.
• Court: North Carolina Supreme Court

Page 383

80 S.E.2d 383

239 N.C. 487

HENDERSON, v.HENDERSON.

No. 102

Supreme Court of North Carolina.

Feb. 24, 1954

E. L. Loftin, Asheville, for plaintiff-appellant.

Harkins, Van Winkle, Walton & Buck, Asheville, for defendant-appellee.

BOBBITT, Justice.

In testing the sufficiency of the plaintiff's evidence to require submission of the issue of negligence to the jury, certain well-established propositions must be kept in mind.

The general law as to what constitutes actionable negligence is thus stated by Justice (later Chief Justice) Hoke: 'To establish actionable negligence, the question of contributory negligence being out of the case, the plaintiff is required to show by the greater weight of the testimony, first, that therehas been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiffs under the circumstances in which he was placed--proper care being that degree of care which a prudent man should use under like circumstances and charged with like duty; and, second, that such negligent breach of duty was the proximate cause of the injury--a cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a resul was probable under all the facts as they existed.Shearman and Red. on Neg. §§ 25-28;Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885;Raiford v. Wilmington & W. R. Co., 130 N.C. 597, 41 S.E. 806;Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306;McGowan v. Chicago & N. W. Ry. Co., 91 Wis. 147, 64 N.W. 891. 'Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 39, 41, 50 S.E. 448, 449.

With further reference to proximate cause, we note that 'foreseeability' is one of its requisite elements.Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147;Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E.2d 378.

Apart from safety statutes prescribing specific rules governing the operation of motor vehicles, a person operating a motor vehicle must exercise proper care in the way and manner of its operation, proper care being that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty.Thus, he must exercise due care as to keeping a proper lookout, as to keeping his car under proper control, and generally so as to avoid collision with persons or other vehicles on the highway.Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111.

In meeting a car, proceeding in the opposite direction, where the oncoming car is not on its right side of the highway as the vehicles approach each other, ordinarily a motorist may assume that before the cars meet the driver of the approaching car will turn to his right so that the two cars may pass each other in safety; but from the time the motirist sees, or by the exercise of due care should see, that the approaching driver cannot or will not do so it is incumbent upon him then to exercise due care under the then existent conditions.Morgan v. Saunders, 236 N.C. 162, 72 S.E.2d 411, and cases therein cited.

Too, as stated by Chief Justice Devin in Morgan v. Saunders, supra[236 N.C. 162, 72 S.E.2d 413], 'Furthermore, when confronted by the sudden emergency of the approach of another automobile negligently operated, the driver of an automobile who is in no respect at fault, is not usually held to the same degree of deliberation and circumspection as under ordinary conditions.Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562.'

Tested in relation to these well established propositions, we agree with the trial judge in his ruling that the plaintiff's evidence fails to show actionable negligence on the part of the defendant.

The defendant's truck was always on its proper side of the highway, the collision occurring midway between the center line and the east edge of the paved highway.The defendant's truck was traveling at a moderate speed, estimated to be from 20 to 25 miles per hour, and at all times the defendant had the truck under control.

When the Hyatt car came into view, some 60, 75 or 100 yards ahead, rounding the curve, it was on its left side of the paved highway, swerving and wobbling, traveling at a speed of from 50 to 60 miles per hour.Hyatt turned to his right, out of the defendant's lane of travel.Thereafter, he got off the paved portion of the highway into a ditch on his right side, traveled 'just a little ways' in the ditch, and then within 5 to 10 feet of the defendant's truck Hyatt jerked his car out of the ditch and caused it to cut across the paved highway and crash into the defendant's truck.At that time the defendant's truck was almost stopped, barely moving.

Viewing the circumstances in the light most favorable to the plaintiff, as required in passing upon a motion for judgment of involuntary nonsuit, the defendant was confronted suddenly by an emergency caused solely by the gross negligence of Hyatt.If the vehicles were 100 yards apart, as the plaintiff testified, when the Hyatt car came...