Jones v. Schaffer
| Citation | 114 S.E.2d 105,252 N.C. 368 |
| Parties | Kate Lee JONES v. Harry SCHAFFER, Dorothy Schaffer, W. H. Harris, and John W. Harris, through his Guardian ad litem, W. H. Harris. NO. 242 |
| Decision Date | 27 April 1960 |
| Court | United States State Supreme Court of North Carolina |
Bailey & Booe, Charlotte, for plaintiff, appellant.
Carpenter & Webb, Charlotte, for defendants Schaffer, appellees.
Helms, Mulliss, McMillan & Johnston, W. H. Bobbitt, Jr., and Larry J. Dagenhart, Charlotte, for defendants Harris, appellees.
As to defendants Harris, plaintiff seeks a reversal of the judgment of involuntary nonsuit. As to defendants Schaffer, plaintiff, contending her damages greatly exceeded $7,500, seeks a new trial. Actually, there are two appeals; and, while properly presented in one record, each appeal requires separate consideration.
The sole question is whether the evidence offered by plaintiff, considered in the light most favorable to her, was sufficient to warrant submission thereof to the jury as to the alleged actionable negligence of John W. Harris.
In limine, it is noted: (1) There was ample evidence to support a finding that defendant W. H. Harris, the owner of the 1951 Nash Rambler, is liable, under the family purpose doctrine, for the actionable negligence, if any, of John W. Harris, his minor son, on the occasion of the collision. (2) Since the judgment of involuntary nonsuit was entered at the close of plaintiff's evidence, the testimony offered later in behalf of defendants Schaffer is not for consideration on plaintiff's appeal from the Harris nonsuit.
According to plaintiff's allegations: Harris stopped at the intersection in obedience to a red signal light. After the signal light facing him changed to green, Harris proceeded into the intersection. Mrs. Schaffer, notwithstanding the signal then facing her was red, entered the intersection at an excessive rate of speed. Mrs. Schaffer drove into the intersection first and undertook to proceed straight through it ahead of the car driven by Harris. Harris could and should have observed the prior entry and occupancy of the intersection by the car driven by Mrs. Schaffer.
Plaintiff alleged, in substance, that Harris was negligent in that: (1) he failed to yield the right of way and permit the Schaffer car to clear the intersection; (2) he failed to keep a proper lookout and thereby observe the Schaffer car; (3) he failed to keep his car under control; and (4) he failed to avoid a collision with the Schaffer car although he had the means to do so.
Uncontradicted evidence is to the effect that the traffic signal was red when Mrs. Schaffer approached and entered the intersection. Williamson, who was standing on the Used Car Lot at the northwest corner of the intersection, testified that he was looking (east) down Eleventh Street and first observed the approach of the Schaffer car when it was approximately sixty feet from the intersection and that it was 30-35 feet back from the intersection when the lights for traffic on Eleventh Street changed to red. Testimony as to when other witnesses first observed the Schaffer car will be discussed below.
Mrs. Schaffer approached and entered the intersection from Harris' left. However, whether Mrs. Schaffer or Harris had the right of way at this intersection was governed by the ordinance under which the automatic traffic control signals were erected and maintained, not by G.S. § 20-155(a). Compare Kennedy v. James, N.C., 113 S.E.2d 889.
The failure of Mrs. Schaffer to stop in obedience to the red light, a violation of the city ordinance, was negligence per se. Currin v. Williams, 248 N.C. 32, 34, 102 S.E.2d 455, and cases cited. Harris' liability, if any, depends upon whether, as he approached and entered the intersection, what he could and should have seen was sufficient to put him on notice, at a time when he could by the exercise of due care have avoided the collision, that Mrs. Schaffer would not stop in obedience to the red light. Currin v. Williams, supra, and cases cited.
When the collision occurred, according to uncontradicted evidence, the Schaffer car was proceeding at 30-35 or 35-40 miles per hour. The highest estimate of the speed of the Harris car was five miles per hour. The front of the Harris car was 2-4 feet in the intersection. The front of the Schaffer car had proceeded some thirty feet into the intersection. The right front fender of the Schaffer car struck the left front fender of the Harris car.
Uncontradicted evidence tends to show that Mrs. Shuler and Harris stopped in their respective lanes in obedience to the red light and that neither proceeded until after the light facing them had changed from red to green. As to the exact position of their cars while they waited for the light to change, there are these discrepancies: Plaintiff, her son and Reaves testified that the front of the Harris car was (approximately) at the northerly pedestrian crosswalk line. Mrs. Shuler testified that she stopped 'about the broad white line, about 11 feet from the intersection,' and that the front of her car and the front of the Harris car were 'even approximately as nearly as' she could tell. Harris, whose testimony on adverse examination was offered by plaintiff, testified that he stopped 'about two or three feet behind the northerly white line' of the pedestrian crosswalk. He testified that the Shuler car was 'a little ahead' of him.
The substance of Mrs. Shuler's testimony: When her car was stopped at the broad white line she could see approximately sixty feet to her left up Eleventh Street. After the light facing her changed to green, she waited 'an additional two or three seconds' before starting. Her car and the Harris car 'began moving about the same time.' When she started, no car moving west on Eleventh Street was in sight. As she proceeded, she saw the Schaffer car 'coming around the corner of the building.' It was then 'approximately 10 feet back from the broad white line in her lane of traffic.' She 'caught a glance of it out of the corner of (her) eye,' applied the brakes 'almost simultaneously' and stopped 'approximately two feet back' from the southerly line of the pedestrian cross-walk. She traveled a distance of 'about 10 feet.' She testified: Again: 'No, the Harris car did not get ahead of me until I stopped.'
The substance of plaintiff's testimony: When the Harris car stopped, she was 'looking east' and could see approximately 125 feet up Eleventh Street. She glanced at the signal light and saw it had changed to green. Simultaneously, she glanced to the left and saw the Schaffer car. When she first observed it, the Schaffer car was five to ten feet east of the intersection, was coming at a rapid rate of speed, 30-35 miles per hour, and continued at this speed until the collision. She 'knew it (the Schaffer car) would not stop.' After she first observed the Schaffer car, Harris started to move forward. The Schaffer car entered the intersection first. On cross-examination: When Harris started forward, some cars, headed west on Eleventh Street in the traffic lane adjacent to the center of the street, had stopped in obedience to the red light. As to whether she had time, from the time she first observed the Schaffer car until the collision, to move, cry out, or do anything except just realize there was a car there, her testimony was that it all happened so suddenly she did not believe she had time to do so.
The testimony of John Douglas Jones, as to the position and speed of the Schaffer car when he observed it, is substantially in accord with the testimony of his mother. In addition, he testified:
The testimony of Reaves, who was facing (west) toward his right, is to the effect that he did not see the Schaffer car until he heard Jones holler, 'Look out'; that '(a) fter Douglas Jones hollered, our vehicle started up to move out south on Brevard' and 'continued to move out into the street'; and that, after Jones hollered, he looked up and saw the Schaffer car 'about five feet to the left front of Mr. Harris' car.'
The substance of the testimony of John W. Harris: He was talking to plaintiff, facing generally to his right. When the light facing him changed to green he 'paused a second or two' before starting forward. He started shortly after the car to his left, the Shuler car, had started. While doing so, he was looking straight ahead. He was relying upon what the Shuler car was doing and on the green light. The Shuler car obstructed his vision to the left. The Nash Rambler 'was a little smaller and a little lower' than the Shuler car. The traffic lane for the Shuler car was slightly higher than the curb traffic lane. When the Shuler car came to a stop, he had his first view to his left. Then, for the first time, he saw the Schaffer car. He was then approximately at the southerly line of the pedestrian cross-walk. The Schaffer car 'lacked approximately eight feet of having gone all the way through the intersection at that time.' He testified: 'The front of my vehicle had gone about two, maybe three feet into the intersection at the time the two cars came together.'
While, as stated above, a bystander, who had a clear view (east) down Eleventh Street, saw the Schaffer car when it was approximately sixty feet east of the intersection, Mrs. Shuler did not see it until it was approximately ten feet east of the 'broad white line,' presumably the 'stop line,' and plaintiff and her son (who were facing east) did...
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