Rushing v. Polk, 251

• Decision Date: 12 December 1962
• Docket Number: No. 251,251
• Court: North Carolina Supreme Court
• Parties: Mrs. Raymond W. RUSHING v. Nell Flowe POLK and James K. Polk.

Page 675

128 S.E.2d 675

258 N.C. 256

Mrs. Raymond W. RUSHING v. Nell Flowe POLK and James K. Polk.

No. 251

Supreme Court of North Carolina.

Dec. 12, 1962

Bailey & Booe, Raleigh, for plaintiff.

Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendants.

MOORE, Justice.

The accident in question occurred about 7:45 A. M. on or about 28 September 1960 on Highway 27, which, at the point of the accident, is a two-lane blacktop road about 20 feet wide. The speed limit at the place of accident was 55 miles per hour. Plaintiff was a passenger in a Ford station wagon registered in the name of the male defendant and being driven by the feme defendant. The defendants are husband and wife. The husband was not in the vehicle at the time. The station wagon was proceeding westwardly in the direction of Charlotte. It came to the crest of a hill. At this point there is a clear view to the west for about a half mile to the crest of another hill. Between the two hills the highway dips into a valley, having a slight hill or ridge between the two higher hills. As she passed the crest of the hill, feme defendant saw no meeting traffic and pulled to the left to pass the traffic in front of her. It was raining and the road was wet. The station wagon, in passing, began to skid, the driver lost control, the vehicle skidded from one side of the road to the other and ran off the hardsurface on the right-hand side and collided with a telephone pole. Plaintiff was injured. According to plaintiff's version of the occurrence, there were three vehicles preceding the station wagon, defendant's speed was 50 miles per hour before pulling out to pass, it was as much as 65 or 70 miles per hour in passing the three vehicles, and as the station wagon was pulling back into the right-hand lane it started skidding and the driver lost control. Defendants' evidence tends to show that the speed before passing was 30 to 35 miles per hour and in passing it did not exceed 45, there was only one vehicle ahead, the station wagon began to skid as it pulled to the left to pass, the left rear wheel slipped off the hardsurface, and the driver lost control.

(1). The first question for decision relates to the admission of evidence respecting the crossing of yellow lines. The highway has a broken white line in the center. Because of the rise or low hill in the vicinity of the accident, there are also yellow lines in the lanes of travel. Plaintiff testified, without objection, as follows: '* * * (T)here are yellow lines along the center of Highway 27 in this immediate area. The yellow lines I am referring to are depicted on the photograph marked plaintiff's exhibit # 1. With reference to the crest of the hill east of the point where the wreck took place, I don't exactly know where the yellow line in the lane for westbound traffic begins. I believe it starts up there part of the way from the hill.' Without objection or restriction two photographs were introduced in evidence showing the highway in the vicinity of the accident and the yellow lines in question. Thereafter, over defendants' objection, plaintiff and her witnesses were permitted to testify that there was a yellow line in the lane for westbound traffic at the place the station wagon pulled out to pass, continuing to about the point of the accident, and feme defendant to testify that there was no yellow line in her lane when she started to pass, she pulled out about 200 feet before she reached it, it begins about 300 feet west of the crest of the hill, and she had passed before reaching the yellow line and only crossed it in skidding. There was evidence that feme defendant travelled the road daily and knew the lines were there and their location. Defendants' motion to strike all the evidence relative to the yellow lines was overruled.

Defendants contend that this evidence was prejudicial and should have been excluded, for that (1) plaintiff's complaint does not allege that Mrs. Polk negligently crossed a yellow line, (2) yellow lines are not designed to protect against the type of accident which occurred in this case, and (3) it could not have been a proximate cause of plaintiff's injury and was, therefore, irrelevant and immaterial.

It is true that the complaint does not allege that feme defendant crossed a yellow line; it makes no reference whatever to yellow lines. It is also true that the court in the charge did not refer to the challenged evidence, and did not instruct the jury that the negligent crossing of a yellow line by feme defendant might be basis for recovery under the circumstances of this case. Had the court so charged, it would have been error. Yellow lines are designed primarily to prevent collision between an overtaking and passing automobile and a vehicle coming from the opposite direction, and to protect occupants of other cars, pedestrians and property on the highway. Powell v. Clark, 255 N.C. 707, 710, 122 S.E.2d 706; Walker v. American Bakeries Co., 234 N.C. 440, 443, 67 S.E.2d 459. The presence and the crossing of a yellow line are evidential details in the totality of circumstances in the instant case. The function of a complaint is to state the ultimate facts which constitute the cause of action, but not the evidence to prove them. Parker v. White, 237 N.C. 607, 75 S.E.2d 615. Plaintiff alleged that feme defendant operated the station wagon at a speed in excess of the established limit and at a speed greater than was reasonable and prudent under the circumstances, and failed to maintain control. Plaintiff testified that the passing speed was 65 or 70 miles per hour on a wet road while it was raining. Quaere: Did feme defendant's knowledge of the presence of the yellow line, implying hazard, influence her in accelerating to such speed, if she did drive at such speed? We are not prepared to say that plaintiff was not entitled to contend that it did. It may be stated generally that any evidence of the conditions and circumstances leading up to and surrounding an automobile accident which will throw light upon the conduct of the parties and the care, or lack of care, exercisec by them, is admissible. 5A Am.Jur., Automobiles and Highway Traffic, § 937, p. 828; 61 C.J.S. Motor Vehicles § 515, p. 245. Evidence of physical conditions existing at the scene of an accident is ordinarily admissible. 61 C.J.S. Motor Vehicles § 516 n (1), p. 260. Furthermore, if there was any error in the admission of the testimony in question, it would seem that it was waived by defendants' failure to object to all of it. An exception is waived when other evidence of the same import is admitted without objection. 1 Strong: N. C. Index, Appeal and Error, s. 41, p. 122. Plaintiff had testified to the existence of the yellow lines and photographs had been introduced showing the location of the lines before the objections to such evidence were interposed. Defendants' exceptions to the evidence relating to yellow lines are not sustained.

(2). Defendants assign as error the admission of evidence that plaintiff and other passengers in the station wagon paid for the privilege of riding with feme defendant.

Feme defendant was employed as a secretary by Duke Power Company. She drove the station wagon to and from work. Others, including plaintiff, also had employment in Charlotte and rode with the feme defendant to and from their work regularly. They paid feme defendant an amount agreed upon 'for gas'; they 'shared expenses.' The record does not disclose that there was any contention that feme defendant was a common carrier.

In our opinion defendants waived their exceptions to this evidence when they permitted plaintiff without objection to testify as follows: 'I was a paying customer, that is, I paid her to ride back and forth to work with her.' This was the first testimony given as to payment for riding.

(3). Male defendant excepts to portions of the charge on the agency issue.

Plaintiff alleges that the station wagon was owned by and registered in the name of the male defendant, James K. Polk, and the feme defendant, Nell Flowe Polk, was a member of the household of male defendant, it was a family purpose vehicle, and at the time in question feme defendant was operating the station wagon with the permission and consent and as the agent of male defendant and within the course, scope and in furtherance of the agency. Defendants admit that the station wagon was registered in the name of James K. Polk and Nell Flowe Polk was a member of his household, but deny all other allegations relating to agency.

Other than the above admissions, the only evidence bearing on the agency issue is the testimony of Nell Flowe Polk, as follows:

'* * * I was driving a 1959 Ford station wagon. There was another vehicle in our family. The station wagon was registered in my husband's name. I used the station wagon from day to day. I used it for anything I wanted to, back and forth to work or for whatever I wanted to drive it.

'There was a second car in the family, a 1960 Ford, just a sedan. My husband used the second car I just referred to.

'At that time my husband was employed. * * * He was a salesmen. He used the car, the sedan, in connection with his work as a salesman. * * The car I came to work in was a Ford station wagon.

'As to the purchase of the Ford station wagon we both looked at the car and when it was bought, it was put in his name. We put the money in a bank account and I wrote the checks for it. It was joint money. After the car was bought I maintained it.'

The court charged the jury with respect to the prima...