Maddox v. Brown
| Decision Date | 01 November 1950 |
| Docket Number | No. 522,522 |
| Citation | 232 N.C. 542,61 S.E.2d 613 |
| Parties | MADDOX, v. BROWN et al. |
| Court | North Carolina Supreme Court |
Smathers & Carpenter, Charlotte, for plaintiff-appellee.
Robinson & Jones, Charlotte, for defendant-appellants.
There is testimony in the record from which a jury may find that the deceased and Brown, the bus driver, were both traveling in the passing lane, going west; that Brown signaled his desire to pass deceased who was on a motorcycle ahead; that deceased did not immediately yield the right of way but continued on in the passing lane; that Brown did not slow up, but, instead, continued on and attempted to cut around the motorcycle while it was still in the same lane; that in so doing, he struck the motorcycle; and that the deceased was thrown to the pavement, receiving injuries in his fall which caused his death.
So long as the deceased remained in the passing lane, if in fact he was in that lane, it was the duty of Brown to refrain from any effort to pass him. The mere fact deceased would not yield the right of way did not relieve Brown of the duty to exercise due care in that respect. Ward v. Bowles, 228 N.C. 273, 45 S.E.2d 354.
On the other hand, there is testimony coming from witnesses for plaintiff as well as witnesses for defendant tending to show that the deceased was traveling on a motorcycle in the outer or slow traffic lane and the bus was in the inner or passing lane; that Brown blew his horn several times to give notice of his intention to pass; that just as the bus came almost abreast of the motorcycle, the deceased suddenly cut his vehicle to the left and collided with the right front portion of the bus near the door, and that Brown, in an attempt to avoid the collision, drove across the center line of the highway and proceeded on and parked on the lefthand side of the road.
If this be the case, and the jury so finds, then the negligence of deceased was at least a proximate cause of the collision and resulting death. Van Dyke v. Atlantic Greyhound Corp., 218 N.C. 283, 10 S.E.2d 727; Miller v. Lewis & Holmes Motor Freight Corp., 218 N.C. 464, 11 S.E.2d 300.
This conflicting testimony requires the submission of appropriate issues to a jury. For that reason the former opinion, insofar as it sustains the court below in its rulings on the motion to dismiss as in case of nonsuit, is approved and the petition to rehear on that phase of the case is denied.
The petition for rehearing on the exceptive assignments of error directed to alleged error in the charge presents more serious questions which require, in the first place, a careful examination of plaintiff's allegations of negligence.
She alleges (1) that Brown failed to keep a proper lookout for persons on the highway, (2) that he operated the bus at a high, reckless, and unlawful rate of speed, (3) that he attempted to pass deceased at or in an intersection in violation of G.S. § 20-149, and (4) that he attempted to pass the motorcycle while deceased was in the act of making a left turn from the highway.
There is no evidence in the record tending to support any one of these allegations. It is apparent from all the evidence that Brown was keeping a lookout, saw deceased, and gave ample warning of his approach. One witness for plaintiff went so far as to testify that the bus horn was blowing so continuously he thought it was 'hung up.'
The bus was being operated well within the maximum limit permitted by law under the circumstances, and the judge so charged the jury. And the plaintiff alleges no fact or circumstance which made it the duty of Brown to drive at a slower rate of speed. In this connection we must note that none of the conditions surrounding the collision are alleged.
This is not an intersection accident case. Brown began to signal deceased some 700 to 900 feet east of the intersection, and the collision occurred 150 feet or more before the vehicles reached the intersection.
There is not a particle of evidence in the record tending to show deceased intended to make a left-hand turn or that he gave any signal of his intention to do so. The mere fact that in traveling along the highway on a motorcycle the deceased veered from the right to the left-hand portion of the passing lane, without any signal whatever, was not sufficient to indicate or give...
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