Rouse v. Jones, 312

• Decision Date: 03 May 1961
• Docket Number: No. 312,312
• Parties: Braxton ROUSE v. Preston E. JONES, Esqul R. Jones and Walter T. Shivar, a Minor, by his Guardian ad litem, Willie T. Shivar, and Willie T. Shivar.
• Court: North Carolina Supreme Court

Page 628

119 S.E.2d 628

254 N.C. 575

Braxton ROUSE v. Preston E. JONES, Esqul R. Jones and Walter T. Shivar, a Minor, by his Guardian ad litem, Willie T. Shivar and Willie T. Shivar.

No. 312

Supreme Court of North Carolina.

May 3, 1961

White & Aycock, Kinston, for plaintiff.

Taylor, Allen & Warren, Goldsboro, for defendants Preston E. Jones and Esqui R. Jones.

Jones, Reed & Griffin, Kinston, for defendants Shivar.

MOORE, Justice.

Defendants Jones and defendants Shivar severally assign as error the refusal fo the court to allow their respective motions for nonsuit.

With respect to negligence and proximate cause the evidence is sharply conflicting. On the motions to nonsuit, plaintiff is entitled to have the evidence considered in the light most favorable to him. King v. Powell, 252 N.C. 506, 509, 114 S.E.2d 265. When so considered, plaintiff's version of the occurrence is as follows:

About ten minutes before the accident Jones and Shivar met at the river bridge and talked a minute or two. Jones turned his car around and proceeded in the same direction Shivar was going. About two miles south of the river there is a slight curve and the highway is slightly upgrade. As the cars approached the curve Jones pulled out to pass Shivar and the lights of a meeting car flashed up. As Jones pulled out beside Shivar, plaintiff said to Jones: 'Watch it Preston, yonder comes a car. ' All of them saw it about the same time. When Jones saw the car approaching he had pulled out and was alongside Shivar. Jones 'shoved it to the bottom to get in front of' Shivar. Jones was close behind Shivar when he pulled out to pass. Plaintiff didn't know whether the lights of the meeting car, when he first saw them, had been on before or someone turned them on at the moment. At the scene of the accident Jones and Shivar told the highway patrolman that their speed at the time of the collision was 50 to 55 miles per hour. The next afternoon Shivar told investigating officers that they were not exceeding 70. Later in the presence of Jones and the officers he said to Jones: 'Preston you might as well tell the truth about it, I have. ' Jones then said they were not going over 70 miles per hour. Defendants explained that they had not exceeded 70 miles per hour, but at the time of the collision had slowed down to about 55--they had slowed to 50 or 55 at the time they ran together. Jones said the meeting car was 100 to 150 feet away when its lights came on. Shivar said it was about 200 feet away. Jones said he didn't know whether his lights were good enough to enable him to see a man or unlighted vehicle 200 feet down the highway or not. Shivar did not slow down when Jones attempted to pass, but accelerated his speed. In the attempt to get around Shivar, Jones pulled to the right and his car collided with Shivar's car. Both ran off the highway and down an embankment into a swampy area. The Shivar car came to rest 150 feet from the point of collision. The Jones car went 375 feet from the point of collision and struck a tree. One of its doors was torn off and plaintiff fell out. The meeting car did not collide with either of defendants' cars and did not stop.

From this evidence the inference is reasonable that defendant Jones attempted to pass defendant Shivar at night while driving slightly upgrade and approaching a slight curve, he began the movement from a position close to the rear of the Shivar car which partially obstructed his vision, he attempted to pass at a time when the Shivar car was travelling at the maximum posted speed of 55 miles per hour, the movement was made at a speed that would not permit him, when he discovered the peril of the meeting automobile, to control his vehicle so as to resume his position at the rear of the Shivar car or otherwise avoid a collision, and as a result he collided with Shivar's vehicle in trying to avoid the meeting automobile and caused injury to plaintiff, his passenger. In short, Jones' conduct permits the reasonable conclusion that he attempted to pass when the left side of the highway was not clearly visible and before he ascertained that it was free of oncoming traffic for a sufficient distance ahead to allow him to pass in safety, and that he was operating his vehicle at a speed greater than was reasonable and prudent under conditions then existing.

The driver of a motor vehicle is by statute forbidden to drive 'to the left side of the center of a highway, in overtaking and passing another vehicle proceeding in the same direction, unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety. ' G.S. § 20-150(a). One who violates this section is negligent, and if such negligence proximately causes injury it is actionable. Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Joyner v. Dail, 210 N. C. 663, 188 S.E. 209.

There was testimony, albeit not positive, that the lights of the meeting automobile were not turned on until it was within 200 feet of the Jones car. Nevertheless, before overtaking and passing a vehicle going in the same direction, a motorist has positive duties. 'One who operates a motor vehicle must be reasonably vigilant and anticipate the use of the highways by others. ' Clark v. Emerson, 245 N.C. 387, 390, 95 S.E.2d 880, 883. Jones had the duty to give attention to those circumstances which tended to obscure his vision and determine his decision as to whether or not he could pass in safety, such as his nearness to the car he was following, the effectiveness of his lights, the curve ahead, the obscuring effect of the night itself. Cox v. Lee, 230 N.C. 155, 52 S.E.2d 355; Tyson v. Ford, 228 N.C. 778, 47 S.E.2d 251. From the evidence in the case the jury might reasonably have concluded that Jones attempted to overtake and pass without having made a reasonable determination that he could do so in safety.

In any event, it appears from plaintiff's evidence that he attempted to pass a vehicle going in the same direction which was already travelling at the maximum lawful speed, knowing that his own speed in passing would have to be much greater, that he pulled out...