Marshburn v. Patterson

• Decision Date: 04 February 1955
• Docket Number: No. 678,678
• Citation: 241 N.C. 441,85 S.E.2d 683
• Parties: R. W. MARSHBURN v. Billy Rae PATTERSON, Clyde Eddieman and Ethel Eddleman. Wilbur W. MARSHBURN, by his Next Frlend, Lucille C. Marshburn, v. Billy Rae PATTERSON, Clyde Eddleman and Ethel Eddleman.
• Court: North Carolina Supreme Court

Page 683

85 S.E.2d 683

241 N.C. 441

R. W. MARSHBURN v. Billy Rae PATTERSON, Clyde Eddieman and Ethel Eddleman.

Wilbur W. MARSHBURN, by his Next Frlend, Lucille C. Marshburn, v. Billy Rae PATTERSON, Clyde Eddleman and Ethel Eddleman.

No. 678

Supreme Court of North Carolina.

Feb. 4, 1955

C. M. Llewellyn and M. B. Sherrin, Concord, for defendant-appellants.

Jordan & Wright, Greensboro, for plaintiff-appellees.

BARNHILL, Chief Justice.

During the trial of these causes in the court below, the defendants entered timely motions to dismiss the actions as to both plaintiffs as in case of involuntary nonsuit. The motions were denied and the defendants excepted. These exceptions are the bases of one of defendants' primary assignments of error.

The defendants in their brief concede there is sufficient evidence of negligence on the part of the defendant Patterson to repel their motions for judgment as in case of involuntary nonsuit. They rest their motions, as they must rest, on the alleged contributory negligence of the operator of the Marshburn automobile.

There is evidence tending to show that as the operator of the Marshburn vehicle approached the intersection, he did not look either to the right or to the left. He so testified. Had he been keeping a proper lookout, he could and would have seen the Eddleman vehicle approaching the intersection at approximately the same time. Was his negligence in failing to keep a proper lookout one of the proximate causes of the resulting collision?

When a motorist traveling on a dominant, primary highway and a motorist traveling on a servient, intersecting highway approach the intersection of the two highways so nearly at the same time that either one or the other must yield the right of way or else create a dangerous traffic hazard, it is the duty of the motorist on the servient highway to slow down and, if necessary, stop and yield the right of way. And the motorist traveling on the dominant highway, nothing else appearing, has the right to assume that the motorist on the servient highway will yield the right of way as he is by law required to do. Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25.

Therefore, in the absence of some fact or circumstance sufficient to put a man of ordinary prudence on notice that the motorist traveling on the servient highway does not intend to or cannot slow down in time to yield the right of way, a motorist on the dominant highway breaches no duty he owes the motorist on the servient highway in his failure to keep a proper lookout. Ordinarily any negligence on his part in this respect does not constitute one of the proximate causes of a collision at the intersection. Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Harrison v. Kapp, N.C., 85 S.E.2d 337.

When, however, a motorist on the dominant highway has time to realize, or by the exercise of proper care and watchfulness should realize, that the motorist on the servient highway is unaware of his presence, or does not intend to or cannot observe the law, or is in a somewhat helpless condition, or is apparently unable to avoid the approaching machine, the negligence of the motorist on the dominant highway may be considered one of the proximate causes of a collision at the intersection. Guthrie v. Gocking, 214 N.C. 513, 199 S.E. 707; Cory v. Cory, 205 N.C. 205, 170 S.E. 629; James v. Carolina Coach Co., 207 N.C. 742, 178 S.E. 607.

That is to say, it is the duty of a motorist traveling on a through street to keep a proper lookout, and he is charged with having seen what he should have seen. When he observes a vehicle traveling on a servient street approaching the same intersection at such a high rate of speed or under such other circumstances that he, in the exercise of ordinary care, knows or should know that the motorist on the servient highway cannot or will not stop and yield the right of way, it is the duty of the motorist on the through street to reduce his speed and use all precautions reasonably at his command to avoid a collision. If the speed of the vehicle on the servient road, or some other circumstance, is such that it puts him on notice that the other motorist cannot stop, and the circumstances are such that he (the motorist on the dominant road) could avoid the collision after observing this condition, but he does not do so for the reason he is not keeping a proper lookout, then his failure to keep a proper lookout and to reduce his speed must be deemed to be one of the proximate causes of the resulting collision. Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Ferguson v. City of Asheville, 213 N.C. 569, 197 S.E. 146; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401; Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377.

It follows that the court will not sustain a motion for judgment of involuntary nonsuit for the reason plaintiff's evidence tends to show that he failed to keep a proper lookout when the evidence in respect thereto is conflicting.

Here, on the question posed for decision the record discloses a somewhat novel...