Primm v. King

• Decision Date: 10 December 1958
• Docket Number: No. 247,247
• Citation: Primm v. King, 106 S.E.2d 223, 249 N.C. 228 (N.C. 1958)
• Parties: Emma PRIMM v. Latha Eugene KING and Hilda Ward.
• Court: North Carolina Supreme Court

Page 223

106 S.E.2d 223

249 N.C. 228

Emma PRIMM v.Latha Eugene KING and HildaWard.

No. 247

Supreme Court of North Carolina.

Dec. 10, 1958

Henry L. Strickland, Charlotte, for plaintiff.

Carswell & Justice, Charlotte, for defendant King.

Helms, Mulliss, McMillan & Johnston, Charlotte, for defendantWard.

DENNY, Justice.

The defendant King assigns as error the refusal of the court below to grant his motion for judgment as of nonsuit made at the conclusion of all the evidence.

In our opinion, the evidence adduced in the trial below was sufficient to carry the case to the jury as to the defendant King, and we so hold.

Among other things, however, this defendant excepts to and assigns as error the following portion of the charge to the jury: 'Incidentally, let me say here, ladies and gentlemen, there being no evidence as to what kind of zone or district this was, that the 55 miles on hour speed law would apply here, and that a speed under 55 miles an hour would not be in violation of the speed law, and one above that would be.'

We think this instruction may have misled the jury in light of the fact that the collision involved in this case occurred at an intersection of highways.

G.S. § 20-140 provides: 'Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving, * * *.'

G.S. § 20-141 further provides: '(a) No person shall drive a vehicle on a highway at a speed greater than is reasonably prudent under the conditions then existing.(b) Except as otherwise provided in this chapter, it shall be unlawful to operate a vehicle in excess of the following speeds: 1.Twenty miles per hour in any business district; 2.Thirty-five miles per hour in any residential district; * * * 4.Fifty-five miles per hour in places other than those named in paragraphs 1 and 2 of this subsection for passenger cars, * * *.(c) The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, * * * when special hazard exists with respect to pedestrians or other traffic * * * and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care.'

In light of the provisions of the foregoing statutes it is clear that whether or not a speed of 55 miles an hour is lawful depends upon the circumstances at the time.These statutes provide that a motorist must at all times drive with due caution and circumspection and at a speed and in a manner so as not to endanger or be likely to endanger any person or property.At no time may a motorist lawfully drive at a speed greater than is reasonable and prudent under the conditions then existing.

Conceding that 55 miles per hour was the legal rate of speed on Wilmont Road, the defendant King was entitled to have the jury instructed that notwithstanding the fact that the speed of a vehicle may be lower than 55 miles per hour, 'that shall not relieve the driver from the duty to decrease speed when approaching or crossing an intersection * * *, when special hazard exists with respect to pedestrians or other traffic * * * and speed shall be decreased as may be necesary to avoid colliding with any person, vehicle or other conveyance on or entering the highway and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care.'

The fact that the court in its charge stated and applied the common law rule of the prudent man is not sufficient to remedy the failure to explain and apply the applicable statutory provisions.The charge contained no reference to the applicable provisions of G.S. § 20-141(c).Barnes v. Teer, 219 N.C. 823, 15 S.E.2d 379;Kolman v. Silbert, 219 N.C. 134, 12 S.E.2d 915;Spencer v. Brown, 214 N.C. 114, 198 S.E. 630;Bowen v. Schnibben, 184 N.C. 248, 114 S.E. 170.

For the reasons stated the defendant King is granted a new trial.

Appeal by defendant Ward.

This defendant also assigns as error the refusal of the court below to sustain her motion for judgment as of nonsuit.She is relying upon Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359;Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111;Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361;Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239, and similar cases.

In many instances it is a difficult task to determine whether or not a case falls within and should be governed by one line or another of our decisions.We think, however, the evidence in this case is sufficient to take it out of the line of cases cited and relied upon by this defendant.

The plaintiff is entitled to have the evidence on the entire ronsidered in the light most favorable to her and she is likewise entitled to the benefit of every reasonable inference to be drawn therefrom.Pascal v. Burke Transit Co., 229 N.C. 435, 50 S.E.2d 534;Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307;Thomas v. Thurston Motor Lines, 230 N.C. 122, 52 S.E.2d 377;Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251.

As we interpret the testimony of the defendant Ward, she admits that she saw the top of her co-defendant's car for 150 feet as it approached but before it entered the intersection.She further testified that King was not driving over 10 miles per hour, and she never fixed her own speed at less than 40 or 45 miles per hour, while the plaintiff's testimony fixed her speed at 65 miles per hour before she took her foot off the accelerator when she was about 250 feet from the intersection.Moreover, the plaintiff testified, 'I saw the King car coming across the intersection when the car I was riding in was about 250 feet from the intersection.'

The defendant Ward does not contend that she made any effort to slow down other than to remove her foot from the accelerator until she was within 50 or 60 feet of the intersection.There is some evidence tending to show that after the accident the defendant Ward stated she did not apply her brakes until she was within 10 or 15 feet of the intersection.On the other hand, the testimony of one of her witnesses tends to show that skid marks led back from the Ward car from the...