Tart v. Register, 530

• Decision Date: 23 May 1962
• Docket Number: No. 530,530
• Citation: 257 N.C. 161,125 S.E.2d 754
• Parties: Hettie H. TART v. Atlas M. REGISTER, Thelma Bryant Jernigan, and Carolyn Faye Jernigan, Minor, and L.M. Chaffin, Guardian ad Litem. Vivie J. FLOWERS v. Atlas M. REGISTER, Thelma Bryant Jernigan, and Carolyn Faye Jernigan, Minor, and L.M. Chaffin, Guardian ad Litem.
• Court: North Carolina Supreme Court

Page 754

125 S.E.2d 754

257 N.C. 161

Hettie H. TART v. Atlas M. REGISTER, Thelma Bryant Jernigan, and Carolyn Faye

Jernigan, Minor, and L.M. Chaffin, Guardian ad Litem.

Vivie J. FLOWERS v. Atlas M. REGISTER, Thelma Bryant Jernigan, and Carolyn Faye

Jernigan, Minor, and L.M. Chaffin, Guardian ad Litem.

No. 530.

Supreme Court of North Carolina.

May 23, 1962.

Dupree, Weaver, Horton & Cockman, Raleigh, for defendants Jernigan, appellants.

Wilson & Bain, Lillington, and Wiley Furman Bowen, Dunn, for plaintiffs-appellees.

MOORE, Justice.

Appellants make nineteen assignments of error based on fifty-seven exceptions. Many of the exceptions and assignments are not brought forward in their brief, and these are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 254 N.C. 810. Of those brought forward in the brief, several merit discussion.

(1). Appellants demurred to the complaints on the ground that they do not state sufficient facts to constitute causes of action as to defendants Jernigan in that "it appears upon the face of the complaint(s) that the sole proximate cause of the motor vehicle collision * * * was the negligence of defendant Atlas M. Register." The demurrers were overruled. Appellants in apt time moved for nonsuits. The motions were overruled. The demurrers and motions for nonsuit will be considered together since some of the principles of law decisive of the demurrers apply also to the motions for nonsuit.

Appellants contend that the purported allegations of actionable negligence as to them are mere conclusions of the pleader and are inconsistent with and repugnant to the factual allegations which show that Register's negligence was the sole proximate cause of the collision. They assert, in summary, that the complaints allege that Carolyn Faye Jernigan gave a lawful turn signal and was making a lawful turn when Register, travelling at a high and dangerous rate of speed, crossed a double yellow line, attempted to pass at an intersection where passing was unlawful, and ran into the Jernigan car. They further assert that there is no allegation that Register sounded his horn, blinked his lights, or did anything which would give notice--at a time when effective action might be taken by driver Jernigan--that he would unlawfully attempt to pass. Appellants contend, therefore, that the pleaded conclusions that Carolyn Faye Jernigan failed to control her vehicle, failed to keep a reasonable lookout, and had timely notice of Register's movements are unsupported by factual allegations, do not sufficiently allege negligence on the part of defendants Jernigan, and the demurrers should have been sustained.

We do not agree with appellants' estimate of the sufficiency of the complaints. The pertinent allegations of the complaints, in summary, except where quoted, are: Notwithstanding the fact that Carolyn Faye Jernigan "had her blinker light on, indicating she was going to make a left turn, she proceeded to make the left turn when she saw or, by the exercise of reasonable care, should have seen that the said Atlas M. Register was operating his * * * automobile at a high and dangerous rate of speed and was going to overtake and pass her, and she knew or, by the exercise of reasonable care, should have known that said turn or movement could not be made in safety, and that she had ample time and notice to avoid said collision by the exercise of due care." She was operating the car without keeping a proper lookout. Plaintiffs' injuries were caused by the joint and several acts of defendants, which combined and concurred in proximately producing such injuries.

It is only required that a complaint contain a concise statement of the ultimate facts constituting the cause of action. Thomas & Howard Co. of Shelby, Inc. v. American Mutual Liability Insurance Co., 241 N.C. 109, 84 S.E.2d 337. It should not allege the evidentiary facts required to prove the existence of the ultimate facts. Daniel v. Gardner, 240 N.C. 249, 81 S.E.2d 660. Only facts to which the pertinent legal or equitable principles of law are to be applied should be stated. Truelove v. Durham & Southern R.R., 222 N.C. 704, 24 S.E.2d 537.

The complaint does not, as suggested by appellants, allege both a lawful and an unlawful turn on the part of driver Jernigan. G.S. § 20 154(a) provides in part that "The driver of any vehicle upon a highway before * * * turning from a direct line shall first see that such movement can be made in safety, and * * * shall give a signal as required in this section * * *." The statute imposes two duties upon a motorist intending to turn, (1) to see that the movement can be made in safety, and (2) to give the required signal when the operation of any other vehicle may be affected. A motorist is negligent as a matter of law if he fails to observe either of these statutory precautions, and his negligence in such respect is actionable if it proximately causes injury to another. Mitchell v. White, 256 N.C. 437, 124 S.E.2d 137; Grimm v. Watson, 233 N.C. 65, 62 S.E.2d 538. "Performing the requirement of giving appropriate * * * signals does not necessarily relieve the driver of a motor vehicle of the duty also to make proper observation of the movement of vehicles approaching from the rear * * *." Ervin v. Cannon Mills Co., 233 N.C. 415, 420, 64 S.E.2d 431, 435. "The giving of a turn signal indicates the intention of the signaler to make the indicated turn and requires other motorists involved to observe caution and use reasonable care, but it does not vest in the signaler an absolute right to make the turn immediately, regardless of circumstances. The signaler must first ascertain that the movement can be made in safety." Eason v. Grimsley, 255 N.C. 494, 121 S.E.2d 885. An allegation that the proper turn signal was given does not support the conclusion that the signaler thereby acquired the right to make an uninterrupted turn, or that the turn made pursuant thereto was lawful. The complaints in the instant case sufficiently allege the ultimate fact that Carolyn Faye Jernigan turned without having first ascertained that the movement could be made in safety. It was not required that the complaints allege in detail all of the evidentiary facts which would have put her on notice that turning was perilous if she had heeded them.

"There may be two or more proximate causes of an injury. These may originate from separate and distinct sources or agencies operating independently of each other, yet if they join and concur in producing the result complained of, the author of each cause would be liable for the damages inflicted, and action may be brought against any one or all as joint tort-feasors." Barber v. Wooten, 234 N.C. 107, 66 S.E.2d 690. Acts transpiring prior to or simultaneously with the alleged negligent act of defendant cannot be relied upon by defendant to insulate his negligence, since the principle of insulating negligence refers to acts and conduct subsequently occurring. Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915.

There was no error in overruling the demurrers, and the motions for nonsuit were properly denied. Defendants offered evidence, so the only motions for nonsuit to be considered are those made at the close of all the evidence. And the evidence, whether offered by plaintiffs or defendants, must be taken in the light most favorable to plaintiffs. Murray v. Wyatt, 245 N.C. 123, 95 S.E.2d 541.

The evidence tends to show: When Carolyn Faye Jernigan was about 200 feet from the intersection she turned on the mechanical blinking device giving a left turn signal; it made a clicking noise in the car. Plaintiff Flowers looked back and saw the lights of a car which was maintaining a high rate of speed. It was coming fast, and was beginning to "careen" to the left side of the highway. It "wasn't too far" back. Mrs. Flowers said: "Faye, you had better not turn, for if you do that car will hit you." Faye replied: "He had better not, because I have got on my signal light." Plaintiff Tart looked back and said: "There sure is one coming fast; you had better not turn, he will hit us." At this time the Jernigan car was 100 feet from the intersection and still in the west lane. Faye (according to her testimony) was aware that there was a car behind, looked in her rear-view mirror when about 100 feet from the intersection, but did not continue looking because she "had given * * * signal long enough that (she) thought the person behind * * * was supposed to have control of the car." When about 25 feet from the intersection she turned left, but did not reach the dirt. The cars collided in the east lane.

It is true that G.S. § 20 154(a) does not mean that a motorist may not make a left turn on a highway unless the circumstances be absolutely free from danger. Only reasonable care must be exercised in determining that the movement may be made in safety. Cooley v. Baker, 231 N.C. 533, 58 S.E.2d 115. The record clearly shows that Register was negligent, and it is true that a driver on the highway is under no duty to anticipate the negligence of other users of the highway. Simmons v. Rogers, 247 N.C. 340, 100 S.E.2d 849. But Miss Jernigan was aware that a car was following. Both plaintiffs warned her of the perilous circumstances; she looked in the rear-view mirror and could have observed the circumstances. Thus she was or, in the exercise of due care, should have been forewarned of the danger of making a turn. There was time to take protective action. Yet, she ceased to continue looking in the mirror. No car was approaching from the opposite direction. From her actions and her declaration at the time, it is clear that she was relying solely upon the efficacy of the signal she had given, which she had no right to do. Eason v. Grimsley, supra. Under the evidence, favorable to plaintiffs, the inference is permissible that Miss Jernigan looked in her rear-view mirror 100 feet before reaching the intersection, but...