Pruett v. Inman, 388

• Decision Date: 18 May 1960
• Docket Number: No. 388,388
• Citation: 114 S.E.2d 360,252 N.C. 520
• Court: North Carolina Supreme Court
• Parties: Samuel R. PRUETT, Jr. v. William McK. INMAN.

Page 360

114 S.E.2d 360

252 N.C. 520

Samuel R. PRUETT, Jr. v. William McK. INMAN.

No. 388

Supreme Court of North Carolina.

May 18, 1960

Deal, Hutchins & Minor, Winston Salem, for plaintiff, appellant.

Womble, Carlyle, Sandridge & Rice by Charles F. Vance, Jr., Winston Salem, for defendant, appellee.

PARKER, Justice.

Plaintiff's evidence tends to show these facts: Highway 52 bypasses the business district of the town of Pilot Mountain: Highway 52-A goes through the business district of the town. At this point Highway 52 runs in a general north and south direction. Highway 268 enters Highway 52 from the east at about right angles forming a T intersection, Highway 52 being the top of the T. Ninety feet north of this intersection Highway 268 intersects Highway 52 from the west forming another T intersection. Highway 52 is 24 feet wide, and Highway 268 is 18 feet wide.

On 4 September 1958 there were no speed signs or slow signs on Highway 52 from where it separates from Highway 52-A to the point of collision hereinafter referred to, and no crossroads signs at any point south of either of the intersections of Highway 268. On this bypass at that time there was no sign stating it was within the town limits of Pilot Mountain. About 20 or 30 feet from the northeast corner of the eastern intersection of Highway 268 with Highway 52 there was at that time a small sign erected looking like a Z, indicting Highway 52 going straight ahead and Highway 268 farther down Highway 52 going off to the left or west. This was the only intersection sign there at this time. 'It was open highway, apparently, with the State 55 mile speed limit.'

About 8:00 o'clock a. m. on 4 September 1958 plaintiff, going from his home in Forsyth County to his work at Mt. Airy, was driving his 1952 Cadillac automobile north on Highway 52. He was driving at a speed of about 40 miles an hour as he approached the intersection of Highway 268 from the east with Highway 52, and did not slow down. When he first saw defendant's automobile, it was three or four or maybe five car lengths in front of him, and travelling north on Highway 52 on its right side of the road at a speed of five or ten miles an hour, and appeared to be slowing down and planning to stop. At that time he was two or three car lengths south of the eastern intersection he was approaching. Defendant gave no signal at all. When he was right at the eastern intersection, he blew his horn, and started around defendant's automobile. 'I say I was going forty miles an hour coming up to the intersection, and when I got to 268 and saw his car three to four car lengths ahead of me, I didn't slow up but I blew my horn, because he was proceeding to stop, apparently. Mr. Inman did not stop; he never stopped; he made a left turn without warning; he made a left turn into the northern entrance of 268. ' When his automobile was about even with the left front door of defendant's automobile, defendant's automobile turned very sharply to the left, and the automobiles collided when defendant's automobile was about six feet from the southwest corner of the intersection of Highway 268 from the west with Highway 52. In order to avoid defendant's automobile and to get out of his way he put his automobile in passing gear and travelling very rapidly drove off of Highway 52, crossed Highway 268, entered on a lawn or yard of a house, knocked down a tree in the yard, proceeded on, and stopped when his automobile struck a large pine tree. The lawn was wet with dew, slick as glass, and 'I tried to drive out, rather than to brake out, and couldn't get out; there was a tree in the way. ' The greater part of damage to his automobile was caused by hitting the tree. On crossexamination plaintiff put an X mark on a photograph marked defendant's Exhibit No. 5 as to where the collision occurred, which X mark is at the southwest wide entrance of Highway 268 into Highway 52.

Plaintiff was thoroughly familiar with the highway and road conditions by reason of his travelling on it going to his work in Mt. Airy, though he had not particularly noticed the two intersections of Highway 268. At the time of the collision there were no other automobiles on the bypass.

The Complaint alleges that near the town of Pilot Mountain Highway 268 intersects Highway 52, and the answer admits this averment. During the direct examination of the chief of police of the town of Pilot Mountain, first witness for defendant, he testified that the collision occurred 'at the intersection of 268 and the bypass, 52 Highway, in the city limits of Pilot Mountain. ' Whereupon, the court allowed defendant to file an amendment to his answer to the effect that the collision occurred in the intersection of Highway 52 and Highway 268, an intersection of streets within the town limits of Pilot Mountain.

Defendant's evidence does not show whether the scene of the collision was taken in the corporate limits of Pilot Mountain, when the town limits were last extended in January 1958 or before. C. W. Thomas, a commissioner of Pilot Mountain and a witness for defendant, testified during the trial there is a sign marked 'Pilot Mountain' on the bypass, not 'City Limits of Pilot Mountain,' but 'I wouldn't say for a fact that that sign was not there in September 1958, or was there in September 1958, but I know it is there now.'

Defendant states in his brief: 'It is respectfully submitted that the demurrer to the evidence should be sustained upon the ground of contributory negligence of the plaintiff. ' The term 'contributory negligence' ex vi termini implies or presupposes negligence on the part of the defendant. Owens v. Kelly, 240 N.C. 770, 84 S.E.2d 163. Defendant's contention is this: Plaintiff was contributorily negligent as a matter of law for that, one, he was attempting to pass defendant at an intersection in violation of G.S. § 20-150(c), two, he failed to drive his automobile on his right half of the highway in violation of G.S. § 20-147, and three, he failed to decrease his speed when approaching and crossing an intersection in violation of G.S. § 20-141(c).

Highway 268 enters Highway 52 from the east, and 90 feet to the north it enters Highway 52 from the west. By virtue of G.S. § 20-38(1) each entrance is regarded as a separate intersection. According to the plaintiff's evidence the only intersection sign on Highway 52 was a small sign looking like a Z situate about 20 or 30 feet from the northeast corner of the eastern intersection of Highway 268 with Highway 52 and some 60 feet from the northern intersection of the same roads. G.S. § 20-150(c) prohibits the driver of an automobile from overtaking and passing another vehicle proceeding in the same direction at an intersection of highways, unless permitted to do so by a traffic or police officer, but the statute specifically provides that 'the word[s] 'intersection of highway' shall be defined and limited to intersections designated and marked by the State Highway Commission by appropriate signs, and street intersections in cities and towns. ' Adams v. Godwin, 252 N.C. 470, 114 S.E.2d 76. Defendant states in his brief: 'The defendant contends, however, that the provision of the statute as to signs is inapplicable to the case at bar, since the collision occurred at a street intersection in the town of Pilot Mountain. G.S. § 20-150(c). It is respectfully submitted that the application of G.S. § 20-150(c) is not conditioned upon the marking of town or city limits.'

Plaintiff's evidence does not show that the scene of the collision is within the corporate limits of the town of...