Raper v. Byrum, 32

• Decision Date: 22 September 1965
• Docket Number: No. 32,32
• Citation: 144 S.E.2d 38,265 N.C. 269
• Court: North Carolina Supreme Court
• Parties: Curtis Bradley RAPER, Administrator of Curtis Bradley Raper, Jr., v. Clarence C. BYRUM and James Clarence Byrum, and Clarence C. Byrum, Guardian Ad Litem of Defendant, James Clarence Byrum, a Minor.

Page 38

144 S.E.2d 38

265 N.C. 269

Curtis Bradley RAPER, Administrator of Curtis Bradley Raper, Jr., v. Clarence C. BYRUM and James Clarence Byrum, and Clarence C Byrum, Guardian Ad Litem of Defendant, James Clarence Byrum, a Minor.

No. 32.

Supreme Court of North Carolina.

Sept. 22, 1965.

John H. Hall, Elizabeth City, for plaintiff appellant.

LeRoy, Wells & Shaw, Elizabeth City, for defendant appellees.

LAKE, Justice.

Since the burden of proof on the issue of contributory negligence is upon the defendants, a motion for judgment of involuntary nonsuit upon that ground should be allowed only when the plaintiff's evidence, considered alone and taken in the light most favorable to him, together with all inferences favorable to him which may reasonably be drawn therefrom, so clearly establishes the defense that no other conclusion can reasonably be drawn. Cowan v. Murrows Transfer, Inc., 262 N.C. 550, 138 S.E.2d 228; Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Johnson v. Wayne Thompson, Inc., 250 N.C. 665, 110 S.E.2d 306; Morrisette v. A. G. Boone Co., 235 N.C. 162, 69 S.E.2d 239; Strong's N. C. Index, Negligence, § 26, and cases there cited.

Contributory negligence by the plaintiff's intestate which is one of the proximate causes of his death is a bar to the plaintiff's recovery of damages therefor. Scott v. Western Union Telegraph Company, 198 N.C. 795, 153 S.E. 413. It is not necessary that the negligence of the plaintiff's intestate be the sole proximate cause. Badders v. Lassiter, 240 N.C. 413, 82 S.E.2d 357.

Consequently, the judgment below must be affirmed if the evidence, considered in the light most favorable to the plaintiff, together with all inferences favorable to him which may reasonably be drawn therefrom either (1) fails to show any negligence on the part of the minor defendant which was one of the proximate causes of the collision and resulting death of plaintiff's intestate; or (2) affirmatively shows, so clearly that no other conclusion can reasonably be drawn therefrom, that the plaintiff's intestate was negligent in the operation of the Ford automobile in one or more of the respects alleged in the defendants' answer and that such negligence by him was one of the proximate causes contributing to his own death. Ramey v. Southern R. R., 262 N.C. 230, 136 S.E.2d 638; Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359; Lyerly v. Griffin, 237 N.C. 686, 75 S.E.2d 730; Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361.

The evidence, all of which was introduced by the plaintiff, when so considered with all inferences in his favor reasonably drawn therefrom, shows:

Shortly after 5 p. m., on January 25, 1964, the 1951 Ford, driven by the plaintiff's intestate, and the 1964 Chevrolet, driven by the minor defendant, collided in the right angle intersection of Body Road (Rural Paved Road No. 1139) and Halstead Boulevard (Rural Paved Road No. 1152) in Pasquotank County. Plaintiff's intestate was driving north on Body Road, the servicent highway. The minor defendant was driving east on Halstead Boulevard, the dominant highway. The sky was cloudy and there had been a heavy rain some two hours earlier. Neither car had its lights on. The intersection is in open country and the maximum speed limit on Halstead Boulevard is 55 miles per hour. An official State Highway stop sign was erected at the intersection facing the plaintiff's intestate, on his right side of Body Road, as he approached the intersection, with which he was familiar. On the south side of Halstead Boulevard (the minor defendant's right), some 600 feet west of the intersection, there was an official State Highway sign warning that there was an intersection ahead.

Each driver was accompanied by one male passenger. Plaintiff's intestate and his passenger, Richard McGraw, who was sitting in the right front seat of the Ford, were both knocked unconscious by the force of the collision. Plaintiff's intestate died five days later, without ever regaining consciousness, from injuries received in the collision. McGraw had been drinking from a bottle of whiskey which he had in the automobile, but plaintiff's intestate had not drunk any of it and was not under the influence of intoxicating liquor.

As the plaintiff's intestate approached the intersection he stopped beside the stop sign. There is no evidence as to whether he looked in either direction along Halstead Boulevard or, if he did, what he saw. A motorist stopped at that point could see to his left (the direction from which the minor defendant approached) for at least a quarter of a mile along Halstead Boulevard. McGraw looked to his right and saw no approaching traffic, but before he had time to look to his left, plaintiff's intestate started into the intersection at a speed less than five miles per hour. When about half the length of the Ford automobile had gotten into the intersection to collision occurred. McGraw never saw the Chevrolet driven by the minor defendant before the collision.

The glass in the left front window of the Ford, driven by the plaintiff's intestate, had been partially broken out before the collision and a piece of cardboard was fastened by tape over the hole, but the window was rolled three-fourths of the way down so that the cardboard did not obstruct the view.

The most extensive damages to the Ford was at the left fender and left front door. The most extensive damage to the Chevrolet, driven by the minor defendant, was at the right front. Debris, including glass and metal fragments, was found in the intersection three feet from the couth edge of Halstead Boulevard (the side from which plaintiff's intestate entered the intersection). There were no tire marks west or south of that point. Tire marks, indicating sideways movement of the Ford to its right, extended 132 feet from the debris, across a triangular traffic island five inches in height, to where the Ford came to rest in the ditch on the north side of Halstead Boulevard, east of Body Road. The Chevrolet, driven by the minor defendant, came to rest in the same ditch 139 feet from the point where the debris lay in the intersection, tire marks running to it from that point.

The minor defendant stated to the investigating patrolman that he 'could have been' driving at least 60 miles per hour and that he first realized there was something in front of him when he got right at the intersection and 'saw something black and sparks.'

From the evidence it is a reasonable inference, though not a necessary one, that as he approached and entered the intersection the minor defendant was, as alleged in the complaint, driving the Chevrolet automobile at a speed in excess of 55 miles per hour and in excess of the maximum speed which would have been reasonable and prudent under the conditions then prevailing, and failed to reduce his speed in approaching and entering the intersection. If so, he was driving in violation of the statute, G.S. § 20-141(a, b, c), and was guilty of negligence. Rouse v. Jones, 254 N.C. 575, 119 S.E.2d 628.

It is also a reasonable but not a necessary inference from this evidence that the minor defendant, as he approached and entered the intersection, did not keep a reasonable lookout in the direction in which he was traveling, as he was under a duty to do. Rhyne v. Bailey, 254 N.C. 467, 119 S.E.2d 385; Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330. A motorist who does not keep such a lookout is nevertheless charged with having seen what he could have seen had he looked, and his liability to one injured in a collision with his vehicle is determined as it would have been had he looked, observed the prevailing conditions and continued to drive as he did.

However, even though the inference be drawn that the minor defendant did not maintain a proper lookout as he approached the intersection, the evidence of the plaintiff necessarily leads to the conclusion that, had he done so, he would have seen the Ford, driven by the plaintiff's intestate, approach the intersection on Body Road and come to a complete stop, as he was required to do by the statute in view of the State Highway stop sign duly erected and facing him. G.S. § 20-158. When the plaintiff's intestate again put the Ford in motion, he proceeded not more than half the length of his car into the intersection before the collision occurred. The necessary inference is...