Powell v. Cross

• Decision Date: 24 February 1965
• Docket Number: No. 37,37
• Citation: 263 N.C. 764,140 S.E.2d 393
• Parties: Vernon POWELL v. Mrs. Thomas CROSS, Jr., Mr. Thomas Cross, Jr., and Stephen M. Ginelewicz.
• Court: North Carolina Supreme Court

Page 393

140 S.E.2d 393

263 N.C. 764

Vernon POWELL v. Mrs. Thomas CROSS, Jr., Mr. Thomas Cross, Jr., and Stephen M. Ginelewicz.

No. 37.

Supreme Court of North Carolina.

Feb. 24, 1965.

Edgar J. Gurganus, Williamston, for plaintiff.

Griffin & Martin, Williamston, for defendants Cross.

James & Speight, and William C. Brewer, Jr., Greenville, for defendant Ginelewicz.

MOORE, Justice.

Plaintiff contends, first, that the court erred in allowing the motion of defendants Cross for nonsuit.

The injuries of which plaintiff complains were suffered in a collision involving three automobiles. The collision occurred about 6:45 P.M. on 7 August 1961 on U. S. Highway 13 and 17 about 5 miles north of Williamston, N. C., where paved rural road 1521 (Cedar Landing Road) makes a 'T' intersection with said highway. Plaintiff was driving his automobile northwardly on the highway at a speed of 50 to 55 miles per hour (according to his testimony) approaching said intersection and intending to make a right turn into the Cedar Landing Road. Defendant Mrs. Cross, operating her husband's automobile, was following plaintiff. Defendant Ginelewicz was following Mrs. Cross. The highway is 23 feet wide and has a 6 to 7-foot shoulder on each side. It had been raining. As plaintiff was making his turn to the right at the intersection, his car was struck in the rear by the Cross automobile.

Plaintiff testified: 'As I approached this (Cedar Landing) road, I tapped my brake and began to slow up and give a signal with my hand out and up. I say I gave the signal as much as 200 feet before I arrived at the Cedar Landing Road intersection. I started to slow down my automobile just about where they started with the yellow line * * * the yellow line, coming to the intersection. At the time I gave a signal and before I got to the Cedar Landing Road, I saw two automobiles behind me. It looked like these automobiles were about 35 feet behind me at that time, one behind the other. * * * I was going about 15 miles per hour at the time I started my turn * * * As I got the right wheel started to turn into the Cedar Landing Road, I heard a brake squeal behind me. I turned to look and see what was happening and there were two cars right close together and about that time I got a lick and sent my head back. It flopped forward and before I could get straightened out I got another jolt and it flew back and forwards again. My automobile rolled down the road I reckon 15 to 20 feet. These two jolts I just described were what you might say close enough together before I could get my head straightened out from one, the other hit. * * * I said I heard brakes squeal and I turned to look back and I saw two cars. It looked like one was about 35 feet behind me and it looked like the other one was right near the other car. It did not look like the other car was over about 35 foot behind the Cross car.' After the collision there were two dents in the rear of the car. 'The dent in the center in the rear was dented in about 6 to 12 inches. * * * there was another dent where the left fender joins the body. It was dented in there all out to the edge. Between the dent in the center of the automobile and the dent to the left fender out to the edge was just a scratch, a rubbed scratch, looked like where something rubbed it.'

Mrs. Scott Harrell, a passenger in the Cross car, was called as a witness for plaintiff and testified as follows: 'I was riding on the front seat with Mrs. Cross. * * * We were gaining on the car driven by Mr. Powell (plaintiff). I don't have any idea what Mr. Powell's speed was the first time I saw him. It must have been a mighty slow rate of speed. We saw Mr. Powell's brake lights come on. Mrs. Cross applied her brakes * * * She applied hers immediately and she had come to a complete stop. * * * just short of hitting the car and almost instantly we were hit from the back and turned around in the road so that we were facing back toward Williamston. We hit the car of Mr. Vernon Powell. Mr. Ginelewicz hit us from the back. * * * the Ginelewicz car went to the left * * * After Mr. Ginelewicz's car struck Mrs. Cross' car, Mrs. Cross' car struck Mr. Powell's car. * * * The car driven by Mrs. Cross, I said, had come to a complete stop and had not hit the Powell car before it was hit by Mr. Ginelewicz. * * * his (plaintiff's) car was struck only one time. * * * he was just barely moving.'

Plaintiff instituted this action against Mrs. Cross, Mr. Cross (under the doctrine of respondeat superior, as owner of family purpose car driven by his wife), and Mr. Ginelewicz. He alleges that Mrs. Cross was negligent in that she drove recklessly (G.S. § 20-140) and at a speed greater than was reasonable and prudent (G.S. § 20-141), failed to keep a proper lookout, failed to maintain reasonable control, and followed too closely (G.S. § 20-153).

Plaintiff called Mrs. Harrell and caused her to give testimony. In doing so he made her his witness and represented that she was worthy of belief. State v. Tilley, 239 N.C. 245, 79 S.E.2d 473. She testified that the Cross car came to a complete stop just before reaching the plaintiff's car and was forced into the rear of plaintiff's car by the Ginelewicz automobile. Defendants Cross contend that her testimony absolves them of each of the specifications of negligence set out in the complaint, and that plaintiff is bound by her testimony. On the other hand, plaintiff contends that he is not foreclosed by Mrs. Harrell's testimony with respect to the conduct of Mrs. Cross, that he is not precluded from proving the facts to be different from those to which Mrs. Harrell...