Jernigan v. Jernigan, 242

• Citation: 72 S.E.2d 912,236 N.C. 430
• Decision Date: 29 October 1952
• Docket Number: No. 242,242
• Court: United States State Supreme Court of North Carolina
• Parties: JERNIGAN, v. JERNIGAN et al.

Page 912

72 S.E.2d 912

236 N.C. 430

JERNIGAN, v. JERNIGAN et al.

No. 242.

Supreme Court of North Carolina.

Oct. 29, 1952.

J.R. Barefoot, Benson, and E.R. Temple, Smithfield, for plaintiff, appellant.

A.M. Noble, Smithfield, for defendant, Colonel Jernigan, appellee.

ERVIN, Justice.

The common law disability of the wife to sue the husband at law has been removed by statute. In consequence, a married woman has a right of action against her husband for a tort causing personal injury. King v. Gates, 231 N.C. 537, 57 S.E.2d 765; Bogen v. Bogen, 219 N.C. 51, 12 S.E.2d 649; Alberts v. Alberts, 217 N.C. 443, 8 S.E.2d 523; York v. York, 212 N.C. 695, 194 S.E. 486; Roberts v. Roberts, 185 N.C. 566, 118 S.E. 9, 29 A.L.R. 1479; Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206; Id., 181 N.C. 66, 106 S.E. 149; Graves v. Howard, 159 N.C. 594, 75 S.E. 998, Ann.Cas. 1914C, 565.

This being true, the appeal raises the solitary question whether the presiding judge erred in holding as a matter of law that the evidence introduced by the plaintiff at the trial was insufficient to establish actionable negligence on the part of her husband, the defendant Jernigan.

Jernigan contends that this question must be answered in the negative. He asserts initially that this is so because the testimony at the trial did not disclose any negligence whatever on his part. He concedes that under subsection (b) 4 of G.S. § 20-141 the maximum permissible speed for a passenger car at the place described in the pleadings was fifty-five miles per hour, and that the witnesses testified that he drove his automobile at that place at a speed of not less than sixty miles an hour. He lays hold however, on the celebrated declaration of that great jurist, the late Chief Justice Stacy, in Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88, 89, that "There are a few physical facts which speak louder than some of the witnesses", and argues that the physical facts in the instant case demonstrate the incredibility of the testimony of the witnesses that his speed exceeded the maximum permissible limit. This argument is untenable. It flies in the face of the general rule that what the physical facts say when they speak is ordinarily a matter for the determination of the jury.

Jernigan insists secondarily that the evidence at the trial compelled the single conclusion that there was no causal connection between any act or omission of his and the collision, and that the compulsory nonsuit was proper on that ground even if the evidence did suffice to show that he was driving at an unlawful speed.

His counsel advances these arguments to support this position: That Jernigan and Capps were traveling in opposite directions on State Highway No. 40, each being on his own right-hand half of the highway; that Jernigan rightly assumed, and rightly acted on the assumption, that Capps would observe the precautions prescribed by G.S. § 20-154 with respect to seeing whether such movement could be made in safety and with respect to signaling his intended action before he undertook to make a left turn on the highway; that Capps violated this statute by suddenly making an unsignaled left turn across Jernigan's path when the two automobiles were so close to each other that the collision could not be avoided by any act on the part of Jernigan; that the collision would have happened regardless of whether Jernigan's automobile had been going faster or slower; and that consequently the sole proximate cause of the collision and the resultant injuries to the plaintiff was the improvident left turn made by Capps.

The secondary position of Jernigan is valid in law if, and only if, it is well grounded in fact. Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808. Hence, we are confronted at this point by the subsidiary inquiry whether the evidence at the trial compelled the single...