Stewart v. Yellow Cab Co.

• Decision Date: 30 April 1947
• Docket Number: 528.
• Citation: 42 S.E.2d 405,227 N.C. 368
• Parties: STEWART, v. YELLOW CAB CO.
• Court: North Carolina Supreme Court

42 S.E.2d 405

227 N.C. 368

STEWART, v. YELLOW CAB CO.

No. 528.

Supreme Court of North Carolina

April 30, 1947

Appeal from Superior Court, Mecklenburg County; Felix E. Alley judge.

Helms & Mulliss, Fred B. Helms and James B. McMillan, all of Charlotte, for defendant-appellant.

Henry L. Strickland and J. Laurence Jones, both of Charlotte, for plaintiff-appellee.

SEAWELL Justice.

This was an action to recover damages for negligent injury to the person and property of plaintiff incurred in a collision between the Company's cab and plaintiff's automobile within the intersection of North Tryon and Fifth Streets, in the City of Charlotte.

The trial judge resulted in an adverse verdict and judgment from which the defendant appealed. The determinative questions on this review involve the propriety of the order overruling defendant's demurrer to the evidence and the soundness of the instruction to the jury on the issue of contributory negligence set out below.

It appears that at the locus of the collision North Tryon Street is 65 feet wide from curb to curb, and runs North and South Fifth Street is 26 feet wide and runs East and West. There was a stop light at each corner of the intersection.

The plaintiff's car was being driven in a southerly direction on Tryon Street and defendant's taxicab was in a westerly direction on Fifth. The points of impact on the two vehicles were the left front of plaintiff's car and the right front part of the taxicab, about the front wheel. The taxicab was in a position somewhat turned to the south after the collision and the front left wheel of plaintiff's car had apparently engaged the right front wheel of the taxicab. The collision occurred near the West side of Tryon Street.

The evidence is sharply conflicting with regard to the speed of both taxicab and car in approaching and traversing the intersection; whether the stop lights were green or red when the taxicab entered, and whether green or red when the plaintiff's car entered; and as to which entered the intersection first.

All these factors, and others not catalogued, are important and are relative to each other in their bearing upon the conduct of the parties, whether the plaintiff or the defendant. The differences are such that a factual finding upon any outstanding feature might fix the blame on either party or make it mutual. Such a finding is for the jury. Cole v Koonce, 214 N.C. 188, 191, 198 S.E. 637; Caldwell v. Southern R. Co., 218 N.C. 63, 10 S.E.2d 680; Christopher v. Cherokee County Fair Association, 216 N.C. 795, 4 S.E.2d 513; Manheim v. Blue Bird Taxi Corporation, 214 N.C 689, 691, 200 S.E. 382; Sebastian v. Horton Motor Lines, 213 N.C. 770, 774, 197 S.E. 539.

The exception to the charge brings under review the following instruction to the jury on the second issue,--presenting the question of contributory negligence: "So, with respect to the second issue, the burden of proof on which is on the defendant, if you find by the greater weight of the evidence that on the said 27th day of June, 1944, the defendant through its driver Mr. McGowan, was driving its cab on Fifth Street, going west, that he approached...