Jones v. Horton, 531

• Decision Date: 02 June 1965
• Docket Number: No. 531,531
• Citation: 142 S.E.2d 351,264 N.C. 549
• Court: North Carolina Supreme Court
• Parties: Ivan D. JONES, Jr. v. Wesley Vernon HORTON and Morris Crawley Jones.

Page 351

142 S.E.2d 351

264 N.C. 549

Ivan D. JONES, Jr. v. Wesley Vernon HORTON and Morris Crawley Jones.

No. 531.

Supreme Court of North Carolina.

June 2, 1965.

Yarborough, Blanchard & Tucker, by Irvin B. Tucker, Jr., Raleigh, for plaintiff, appellee.

Dupree, Weaver, Horton & Cockman, by F. T. Dupree, Jr., and Jerry S. Alvis, Raleigh, for Wesley Vernon Horton, defendant, appellant.

SHARP, Justice.

Plaintiff's evidence, taken as true and considered in the light most favorable to him, was sufficient to withstand the motion for nonsuit. If Horton approached the intersection at a speed in excess of 60 MPH--and we must assume that he did, Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205--, he violated G.S. § 20-141(b) and (c) and was thus guilty of negligence per se. Redden v. Bynum, 256 N.C. 351, 123 S.E.2d 734. Horton contends, however, that his speed was not a proximate cause of his collision with plaintiff; that his negligence was completely insulated by that of Jones when the latter entered No. 401 from a servient road directly in the path of Horton's approaching automobile. This contention is unsound. Plaintiff's evidence would permit the jury to find (1) that Horton's excessive speed made it impossible for him to control his automobile and (2) that Horton's failure to keep a proper lookout in the direction of his travel was the reason he did not see plaintiff's Austin-Healey leave the pavement at the moment it did. Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Riggs v. Akers Motor Lines, 233 N.C. 160, 63 S.E.2d 197. It was not inevitable that Horton, because of Jones' negligence, should collide with plaintiff. Had Horton remained on the pavement, there would have been no collision. Under the evidence, it was for the jury to say whether Horton was traveling at an unlawful rate of speed without keeping a proper lookout and, if so, whether such negligence caused him to leave the pavement and collide with the Austin-Healey with such force that it was almost demolished. Conceding that Jones' entrance into the highway confronted Horton with a sudden emergency, plaintiff's evidence tends to show that Horton's excessive speed contributed to the emergency. Therefore, upon a consideration of the motion for nonsuit, it is due plaintiff that Horton not be given the benefit of the rule that one confronted by a sudden emergency will not be held to the wisest choice of conduct but only to such choice as a person of ordinary care and prudence, similarly situated, would have made. Lawing v. Landis, 256 N.C. 677, 124 S.E.2d 877.

Plaintiff's evidence makes out a prima facie case that the negligence of both Horton and Jones concurred in proximately causing plaintiff's injury and damage. Plaintiff could have sued either Horton or Jones separately; he elected to sue them jointly. 'The mere fact that another is also negligent and the negligence of the two results in injury to the plaintiff does not relieve either.' Green v. Isenhour Brick & Tile Co., 263 N.C. 503, 506, 139 S.E.2d 538, 540. And, if the jury erred in its finding that negligence on the part of Jones was not a proximate cause of plaintiff's injury and damage, on this record we are powerless to correct it, and it does not affect Horton's liability to plaintiff. Horton's motion for nonsuit was properly overruled. His demurrer ore tenus, interposed in this court upon the ground that it affirmatively appears from the complaint that the negligence of Jones insulated that of Horton, is likewise overruled.

Horton's second assignment of error raises the question of the admissibility of plaintiff's estimate of Horton's speed as he approached the intersection. It is the rule in...