Rhyne v. Bailey, 455
| Citation | 254 N.C. 467,119 S.E.2d 385 |
| Decision Date | 19 April 1961 |
| Docket Number | No. 455,455 |
| Court | United States State Supreme Court of North Carolina |
| Parties | Claude L. RHYNE and Bettie Tolson Rhyne, v. Paul L. BAILEY, Paul L. Bailey, Jr., and Alvin E. Woods. |
Lassiter, Leager & Walker by Myron C. Banks, Raleigh, for plaintiffs, appellants.
Joyner, Howison & Mitchell by Walton K. Joyner, Raleigh, for Alvin E. Woods, defendant, appellee.
Dupree, Weaver, Horton & Cockman by G. Earl Weaver, Raleigh, for Paul L. Bailey and Paul L. Bailey, Jr., defendants, appellees.
About 5:15 o'clock p. m. on 14 December 1959 plaintiffs' Ford automobile, parked on the south side of University Drive on the campus of North Carolina State College, sustained damage in the amount of $321.49 (this was stipulated by the parties), as a result of being struck in its left rear by a Ford automobile driven by Paul L. Bailey, Jr., son of Paul L. Bailey. Paul L. Bailey owned the automobile driven by his son, and purchased and maintained it for the use, pleasure and convenience of his family. Immediately prior to this collision there had occurred a collision in the intersection of University Drive and an unnamed street between an automobile driven by Paul L. Bailey, Jr., and a Pontiac automobile driven by Alvin E. Woods. University Drive runs east-west. The unnamed street enters University Drive on an upgrade from the north from a parking lot, but does not cross University Drive. The unnamed street was about as wide as the main travelled portion of University Drive, and was paved. There were no road signs or traffic signal at or near the intersection. At and near the intersection there were no obstructions to interfere with the view of traffic. Both streets carried heavy traffic.
Paul L. Bailey, Jr. was called as a witness by plaintiffs, and testified on direct examination in substance: He was driving the automobile east on University Drive about 25 miles an hour. When he was 15 to 20 yards from the intersection, he saw the Woods automobile standing still on the unnamed street to his left and north 10 or 15 feet back from its intersection with University Drive. Paul L. Bailey, Jr. drove into the intersection at a speed of about 20 miles an hour and after he had entered the intersection Woods put his automobile in motion, and drove it into the intersection between 5 and 10 miles an hour. He sounded his horn, applied his brakes, and attempted to turn his automobile slightly to his right in an attempt to get between the front end of the Woods automobile and a row of parked automobiles on his right. The Woods automobile ran into the left side of his automobile, and shoved his automobile into the rear of plaintiffs' automobile. The weather was fair. The sun set at 5:02 o'clock p. m., but he had no lights turned on, because it was not dark enough to require lights.
Paul L. Bailey, Jr. testified in substance on cross-examination by counsel for defendants Bailey: He could see down University Drive about 500 feet or more. As he approached the intersection, Woods did nothing to indicate that he would start forward into the intersection. As he got near the intersection, he saw Woods coming into the intersection. He turned to his right, applied his brakes, and blew his horn. His automobile was hit in the left side by the Woods automobile, and the impact of the collision forced him into the left rear of plaintiffs' automobile. Woods was attempting to make a left turn to go east. After the collision Woods told him he didn't see him. Woods told a policeman investigating the collision he did not see him until after the impact. There was nothing wrong with his brakes. University Drive is a two-lane street. When his automobile was struck by Woods' automobile, it was more than half way past the center of the unnamed street.
Paul L. Bailey, Jr. testified in substance on cross-examination by Woods' counsel: The speed limit on the campus was 20 miles an hour. He sounded his horn after he entered the intersection. He had gone ever half way into the intersection before the moment of impact, that is 15 to 20 feet into the intersection, if the unnamed street is of the same width as University Drive. Both automobiles had travelled approximately the same distance. He was travelling 25 miles an hour. He was travelling two and a half times as fast as the Woods automobile, if Woods was going 10 miles an hour. He hit his brakes and skidded about 10 feet. As he entered the intersection, he noticed that Woods was entering the intersection too.
Alvin E. Woods testified in substance on direct examination: He came to a complete stop at the intersection of the unnamed street and University Drive. He had his lights on, because he thought it was dark enough to require them. He observed both east and west up and down University Drive, and then proceeded to make a left turn onto University Drive, at which time he was struck by the Bailey automobile. His speed at the moment of collision was about 5 to 7 miles an hour. He has no opinion as to the speed of the Bailey automobile. He saw the Bailey automobile just at the impact point. He immediately slammed on his brakes. He did nothing to indicate he was entering the intersection other than having his lights on. It was a clear day, but it was dusk dark with very poor vision. After his automobile and the Bailey automobile collided, the Bailey automobile went over to the right and struck plaintiffs' automobile. There is no obstruction of view at the intersection. There was no obstruction to interfere with the view of traffic to the east for 300 or 400 feet at the intersection. The damage to the Bailey automobile was to the front left fender, and bumper, and the chrome strip on the side. His automobile was damaged on the extreme right front fender, the extreme front portion of the headlight, and corner of the bumper. The only thing he heard was the brakes of the Bailey automobile a split second just prior to the collision. The point of collision was about 3 to 4 feet over the center line of University Drive, the south side of the center line. His automobile was approximately over the center line of the intersection where the center line of the unnamed street intersects with the center line of University Drive. University Drive is about 30 feet from curb to curb.
Woods testified in substance on crossexamination by counsel for the Baileys: When he stopped before entering the intersection, the front of his automobile was 4 or 5 feet back from University Drive. He was aware of the fact that both University Drive and the unnamed street are heavily travelled. He did not see the Bailey automobile at any time prior to the collision. The impact did not occur immediately after he drove into the intersection. He had moved across the north lane of University Drive, and was on the south side of the center line of University Drive.
Woods testified in substance on crossexamination by his own counsel: There was no automobile in the intersection, when he entered it. After the collision he saw a single track skidmark extending 15 feet from the right rear wheel of the Bailey automobile behind the intersection on University Drive.
W. A. Lamm investigated the collision, and testified in substance: The point of impact was 18 feet from the west curb of the unnamed street, 21 feet south of the north curb of University Drive. Bailey said, 'he was going about 25 miles an hour at the time that he first noticed the danger of collision 20 yards from the intersection and then was going about 20 miles an hour at the time they hit.' Woods said, 'he was going about 10 miles an hour, and did not see the other car until they hit.'
In the joint answer of defendants Bailey and in the answer of defendant Woods there is no plea of contributory negligence, nor of a counterclaim.
Chapter 477, § 4, 1953 Session Laws of North Carolina, relating to the procedure in the adjudication of small claims in the Superior Court for Wake County, reads: In the instant case there was no demand for a jury trial by any party.
In respect to a somewhat similar statute for Forsyth County this Court said in Better Home Furniture Co. of Winston Salem v. Baron, 243 N.C. 502, 91 S.E.2d 236, 238: 'An examination of the foregoing Act reveals that its purpose is procedural in character and does not purport to relate to the establishment of a court inferior to the Superior Court within the purview of Article II, § 29, of the Constitution of North Carolina.' See 35 N.C. Law Review 203.
The question presented is the sufficiency of plaintiffs' evidence to withstand the motions of defendants for a judgment of compulsory nonsuit.
In considering such a motion, we are required to accept plaintiffs' evidence as true, and to consider it in the light most favorable to them, and to give them the benefit of every reasonable and legitimate inference to be drawn therefrom. Hutchens v. Southard, 254 N.C. 428, 119 S.E.2d 205; Smith v. Rawlings, 253 N.C. 67, 116 S.E.2d 184.
'Discrepancies and contradictions, even in plaintiff's evidence, are for the twelve and not for the court,...
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