Nationwide Mut. Ins. Co. v. Chantos

• Citation: 258 S.E.2d 334,298 N.C. 246
• Decision Date: 03 October 1979
• Docket Number: No. 7,7
• Parties: NATIONWIDE MUTUAL INSURANCE COMPANY v. Andrew Currie CHANTOS.
• Court: North Carolina Supreme Court

Page 334

258 S.E.2d 334

298 N.C. 246

NATIONWIDE MUTUAL INSURANCE COMPANY v. Andrew Currie CHANTOS.

No. 7.

Supreme Court of North Carolina.

Oct. 3, 1979.

Johnson, Patterson, Dilthey & Clay by Ronald C. Dilthey, Raleigh, for defendant-appellee.

BRITT, Justice.

Plaintiff instituted this action seeking reimbursement from defendant of the sum of $9,581.25 which plaintiff had paid to Charles E. McDonald (McDonald) in settlement for personal injuries and property damage sustained by McDonald in a collision with an automobile insured by a policy of insurance issued by plaintiff to Mr. and Mrs. David Earl Williams. Plaintiff's allegations are summarized as follows:

On 30 January 1971 Mrs. Williams allowed her minor son David to use her 1965 Mustang automobile which was insured by the policy referred to above. David, in turn, gave defendant, who was then 16 years old, permission to use the car. While in lawful possession of the Williams car, defendant negligently operated the same and caused a collision with an automobile operated by McDonald. Defendant's negligence was the proximate cause of serious personal injuries and substantial property damage suffered by McDonald. Plaintiff thereafter notified defendant that it was reserving all rights and defenses under the provisions of the Williams policy, but, nonetheless, under its reservation of rights and at the request of defendant, proceeded in good faith to settle the McDonald claim against defendant for the sum of $9,581.25. As a result of this settlement, plaintiff obtained a release which forever discharged defendant from any further liability to McDonald. Defendant was in lawful possession of the insured automobile. Therefore, plaintiff was required by the terms of G.S. 20-279.21(b) to extend coverage to defendant. Plaintiff is entitled to reimbursement from defendant pursuant to the provisions of G.S. 20-279.21(h) and the policy.

In his answer, the defendant admitted that while he was in lawful possession of the insured vehicle, he was involved in an accident with McDonald, and that McDonald suffered personal injuries and property damage in the collision. He further alleged that plaintiff was obligated to extend protection to him. He denied that the collision was caused by his negligence and that he was liable to plaintiff in any amount.

Plaintiff's evidence pertinent to this appeal tended to show: that the collision occurred during daylight hours on North Boulevard in the City of Raleigh at or near the bridge which carries boulevard traffic over Peace Street; that it was raining at the time; that North Boulevard at that point had three lanes for southbound traffic and three lanes for northbound traffic; that McDonald was traveling south on the inside lane; that defendant was traveling north; that the Mustang defendant was driving left the northbound lanes, went across a concrete median eight inches high into the southbound lanes and hit McDonald's car head on; and that the tires on the Mustang were slick.

Evidence favorable to defendant tended to show: Shortly before the collision, he drove onto the parking lot of a small shopping center located on the east side of North Boulevard and a short distance south of Peace Street. It was raining. Before reentering the boulevard, defendant came to a complete stop at the north entrance of the shopping center parking lot. He then drove onto the boulevard, proceeding north. As he entered the bridge at about 25 m. p. h., the car went out of control into a spin, crossed the median into the southbound lane and collided with the McDonald car. A new coat of asphalt had been recently applied on the bridge. At the time defendant entered the bridge, it was covered with water. The speed limit at said point was 45 m. p. h.

Prior to trial defendant stipulated that on the date in question, while driving the Mustang north on Downtown Boulevard during a rainstorm, he left the northbound lane, crossed over into the southbound lanes and collided with McDonald's car which was traveling south.

For further elaboration on the evidence and the contentions of the parties, see the opinions of this court and the Court of Appeals cited above. While numerous questions were addressed in the prior appeals, the questions pertinent to this appeal are very limited and only they are discussed here.

In the first two assignments of error brought forward and discussed in its brief, plaintiff contends the trial court erred (1) in refusing to strike the opinion testimony of defendant relative to the speed of the automobile he was driving, and (2) in denying plaintiff's motion for directed verdict on the issues. We find no merit in these assignments, and, since they are closely related, we will discuss them together.

On direct examination defendant testified that the bridge was some 75 to 100 yards north of the shopping center exit where he entered the boulevard from a completely stopped position; that he gradually increased his speed and moved over into the left northbound lane; that when he entered upon the bridge, he was traveling about 25 m. p. h.; and that he began to skid or spin immediately after going upon the bridge.

During a vigorous cross-examination, defendant steadfastly reaffirmed his statement that he was driving approximately 25 m. p. h. 30 m. p. h. at the most. He further stated that while he was not sure whether he observed the speedometer, he based his opinion as to speed on the cautiousness with which he entered the boulevard, the "climactic situation", the fact that he did not accelerate very fast, the short distance he had traveled, and his impression that "the terrain around me was not flashing by". He also stated that while he knew his friend David Williams had "burned the rubber" on the Mustang, he did not know that the tires were slick.

It is well settled in North Carolina that a person of ordinary intelligence and experience is competent to state his opinion as to the speed of a vehicle when he has had a reasonable opportunity to observe the vehicle and judge its speed. 2 Strong's N.C. Index 3d, Automobiles § 46 and cases cited therein. A review of defendant's testimony clearly discloses that he was a person of at least ordinary intelligence and experience and that he had a reasonable opportunity to judge the speed of the vehicle he was operating. That being true, the evidence was competent, and its credibility was for the jury to decide.

With respect to its motion for directed verdict, plaintiff argues that defendant's stipulation that he drove across the median and collided with McDonald head on establishes that defendant was negligent Per se. Plaintiff further argues that defendant's testimony that he was traveling only 25 m. p. h. was of no probative value in light of the physical evidence presented and should, therefore, be disregarded.

We agree with plaintiff's assertion that a violation of G.S. 20-146 (requiring a vehicle operator to drive on the right side of the highway, with certain exceptions) is negligence Per se. Reeves v. Hill, 272 N.C. 352, 158 S.E.2d 529 (1968); Lassiter v. Williams, 272 N.C. 473, 158 S.E.2d 593 (1968). However, a defendant may escape liability by showing that he was on the wrong side of the road from a cause other than his own negligence. Anderson v. Webb, 267 N.C. 745, 148 S.E.2d 846 (1966). See also Ramsey v. Christie, 19 N.C.App. 255, 198 S.E.2d 470 (1973).

While defendant in the instant case stipulated that the car he was operating crossed over the median into the southbound lane and collided with McDonald, he also offered evidence tending to show that he was in the southbound lane from a cause other than his own negligence. Therefore, a jury question was presented and the trial court properly denied plaintiff's motion for a directed verdict on the first issue. Anderson v. Webb, supra.

Having held that plaintiff was not entitled to a directed verdict on the first issue, we need not consider its contention that it was entitled to a directed verdict on the other issues because answers in favor of plaintiff on those issues were dependent upon an answer in its favor on the first issue.

Plaintiff states its third question as follows: "Did the trial court err in denying Nationwide's Motion for a Judgment Notwithstanding the Verdict on the first issue and for refusing to set the...