King v. Powell, 391

• Decision Date: 18 May 1960
• Docket Number: No. 391,391
• Citation: 114 S.E.2d 265,252 N.C. 506
• Court: North Carolina Supreme Court
• Parties: Gladys F. KING, Administrator of the Estate of Pamela Faye King, Deceased, v. Hoover POWELL and James Adam King.

Page 265

114 S.E.2d 265

252 N.C. 506

Gladys F. KING, Administrator of the Estate of Pamela Faye King, Deceased, v. Hoover POWELL and James Adam King.

No. 391.

Supreme Court of North Carolina.

May 18, 1960

Averitt & White, Winston Salem, for plaintiff, appellee.

Hudson, Ferrell, Carter, Petree & Stockton, Winston Salem, for defendant Powell, appellant.

Womble, Carlyle, Sandridge & Rice and H. Grady Barnhill, Jr., Winston Salem, for defendant King, appellant.

BOBBITT, Justice.

1. Powell's appeal.

The assignments of error brought forward by Powell in his brief are these: Assignments of error 1 and 2, directed to the denial of his motions for judgment of nonsuit; and assignments of error 3, 4, 5, 6, 7, 8, 11, 12 and 13, directed to designated portions of the court's instructions to the jury. Other assignments of error are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544, 562.

Evidence was offered by plaintiff, by Powell and by King. Hence, the only motion for judgment of nonsuit to be considered is that made at the close of all the evidence. G.S. § 1-183; Murray v. Wyatt, 245 N.C. 123, 128, 95 S.E.2d 541. In determining its sufficiency for submission to the jury, the evidence, whether offered by plaintiff or by either of the defendants, must be considered in the light most favorable to plaintiff. Murray v. Wyatt, supra. Mindful of these well established rules, we consider the evidence tending to support plaintiff's allegations that negligence on the part of Powell was a concurring proximate cause of the collision and of her intestate's death.

With reference to G.S. § 20-158(a), the legal principles stated below are well established.

'* * * 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.' Winborne, J., (now C. J.), in Hawes v. Atlantic Refining Co., 236 N.C. 643, 650, 74 S.E.2d 17, 21; Blalock v. Hart, 239 N.C. 475, 80 S.E.2d 373; Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305; Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544.

In Blalock v. Hart, supra, Johnson, J., after quoting the above excerpt from Hawes v. Atlantic Refining Co., supra [239 N.C. 475, 80 S.E.2d 377], continues: 'However, the driver on a favored highway protected by a statutory stop sign, G.S. 20-158, does not have the absolute right of way in the sense he is not bound to exercise care toward traffic approaching on an intersecting unfavored highway. It is his duty, notwithstanding his favored position, to observe 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 incumbent upon him in approaching and traversing such an intersection (1) to drive at a speed no greater than is reasonable and prudent under the conditions then existing, (2) to keep his motor vehicle under control, (3) to keep a reasonably careful lookout, and (4) to take such action as an ordinarily prudent person would take in avoiding collision with persons or vehicles upon the highway when, in the exercise of due care, danger of such collision is discovered or should have been discovered.' Caughron v. Walker, supra; Primm v. King, 249 N.C. 228, 106 S.E.2d 223; Carr v. Lee, supra.

It is noted that the trial judge fully and accurately instructed the jury as to these legal principles.

Plaintiff alleged, in substance, that Powell was negligent in that he failed to perform the legal obligations indicated in (1), (2), (3) and (4) of the above quotation from the opinion in Blalock v. Hart, supra.

Powell contends, on authority of Butner v. Spease, 217 N.C. 82, 6 S.E.2d 808, and similar cases (see Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919, and cases cited therein), that the evidence establishes the negligence of King as the sole proximate cause of the collision. If the only reasonable inference to be drawn from the evidence is that Powell, when he saw or should have seen King enter the intersection, could not have avoided the collision even if he were free from negligence in the respects alleged, the rationale of these decisions would apply. Suffice to say, this is not the only reasonable inference that may be drawn from the evidence.

The testimony most favorable to plaintiff tends to show that Powell approached the intersection in a 35 mile speed zone; that, shortly after the collision, he stated to the investigating State Highway Patrolman that 'he was doing approximately 50 miles an hour * * * when he first saw Mr. King's car'; that two solid parallel lines of skid marks, 'roughly 6 feet apart,' made by the Powell car, extended 50 feet west from the point of impact; and that the impact was of such violence as to cause three of the passengers in the King car, including the intestate, to be thrown therefrom. This testimony, together with evidence as to the course, position and damaged condition of each car after the collision, was sufficient to support a finding that Powell was operating his car at an unlawful and excessive speed.

Moreover, the evidence most favorable to plaintiff tends to show that the front part of the King car had crossed and was out of the intersection when the collision occurred, and that the Powell car was 100 feet or more away after the King car had actually entered the intersection. Too, a witness testified that Powell stated that he saw the King car when it was 150 feet away; that he put on his brakes; that, thinking the King car was going to get out of the way, he took his foot off the brakes and put it on the gas; and that, when he saw the King car was not going to get out of the way, he put his foot back on the brakes and tried to stop.

The evidence referred to above was sufficient in our opinion to support a finding by the jury that Powell, when he saw the King car enter the intersection, could and should have brought his car under control and stopped, if necessary, and avoided the collision, if he had operated his car at a lawful speed and had exercised reasonable care to have his car under proper control after he saw the King car in the intersection. If Powell was unable or failed to bring his car under control and stop, if necessary, and thereby avoid the collision, either because of his unlawful and excessive speed or because of his assumption that the King car would clear the intersection before he (Powell) reached it, or a combination of these factors, his negligence in respect thereof was a proximate cause of the collision.

For the reasons stated, Powell's assignment of error directed to the court...