Watson Seafood & Poultry Co., Inc. v. George W. Thomas, Inc.

• Decision Date: 17 December 1975
• Docket Number: No. 36,36
• Citation: 220 S.E.2d 536,289 N.C. 7
• Court: North Carolina Supreme Court
• Parties: WATSON SEAFOOD & POULTRY COMPANY, INC. v. GEORGE W. THOMAS, INC. and Robert Pridgen.

Page 536

220 S.E.2d 536

289 N.C. 7

WATSON SEAFOOD & POULTRY COMPANY, INC. v. GEORGE W. THOMAS, INC. and Robert Pridgen.

No. 36.

Supreme Court of North Carolina.

Dec. 17, 1975.

Crossley & Johnson by Robert White Johnson, Wilmington, for plaintiff-appellant.

Horton, Conely & Michaels by Richard B. Conely, Raleigh, for defendant-appellee.

BRANCH, Justice.

Plaintiff's sole assignment of error is that the trial court erred in instructing the jury concerning passing at an intersection.

The trial judge instructed the jury on the issue of contributory negligence as follows:

'If you answer it (the first issue) 'yes', you go to the second issue, which is as follows: 'Did the plaintiff by his own negligence--that is Mr. Parker--contribute to his own injury or damage, as the defendant Pridgen alleges?'

This means that the defendant Pridgen is claiming that the plaintiff Parker is guilty of what we call 'contributory negligence'. By contributory negligence we mean the lack of ordinary care on the part of the plaintiff, which cooperating and concurring with the actionable negligence of the defendant was also a proximate cause of the plaintiff's injury or damage.

Now Mr. Pridgen contended, as I have related before, that when he left that morning his lights were working, and even after the accident one light was still burning.

He testified that he was not going 35 miles an hour, he was going about 15, and he braked it down to around 10 to make his turn. Now let me give you the law relating to this particular case on overtaking and passing on a two-lane highway. Our motor vehicle laws require that the driver of a vehicle overtaking and undertaking to pass another vehicle traveling in the same direction on a two-lane highway shall ascertain that the left lane is clearly visible and free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be made in safety.

Further he shall not overtake and pass at an intersection, that is a street intersection, that is a street intersection in a city or town, or a highway intersection marked as such by the State Highway Commission. Now the evidence we have before us, it is stipulated by the parties that this was in the town of Rose Hill and that it is a street intersection.

Further that he shall pass at least two feet on the left of the vehicle being passed.

Now in this connection if you find that the plaintiff Parker did not use that degree of care and prudence that is required under our laws, which I have just explained to you, then you would answer this issue 'yes', as to the second issue. This would mean that Parker is not entitled to recover anything, because he would be guilty along with Pridgen of doing some negligent act which was one of the proximate causes of this accident. If you find to the contrary, your answer to that shall be 'no'.

G.S. 20--150(c) provides:

(c) The driver of a vehicle shall not overtake and pass any other vehicle proceeding in the same direction at any railway grade crossing nor at any intersection of highway unless permitted so to do by a traffic or police officer. For the purpose of this section the words 'intersection of highway' shall be defined and limited to intersections designated and marked by the Board of Transportation by appropriate signs, and street intersections in cities and towns.

We considered the effect of G.S. 20--150(c) in the case of Adams v. Godwin, 252 N.C. 471, 114 S.E.2d 76, and there held:

. . . The meaning of the section is that one motorist may not pass another going in the same direction under either of two conditions: (1) At any place designated and marked by the State Highway Commission as an intersection; (2) at Any street intersection in any city or town. . . . (Emphasis ours.)

All of the evidence in this case shows that the intersection involved had not been designated and marked as an intersection by the Highway Commission (now the Board of Transportation).

Initially we recognize that, absent specific Legislative exemption, a person who violates the provisions of a safety statute may be held to be negligent as a matter of law. This doctrine was clearly enunciated by Justice Walker in the case of Stone v. Texas Co., 180 N.C. 546, 105 S.E. 425, as follows:

. . . The question as to whether the violation of a statute, or ordinance, especially one intended to safeguard the citizens of a town and their property, is negligence Per se, or only evidence of negligence, has been discussed extensively by this Court in several cases, but the law of this State was finally settled in Leathers v. Tobacco Co.., 144 N.C. 330, 57 S.E. 11, 9 L.R.A.,N.S., 349, where it was held that it is negligence Per se, and as a matter of law, and the rule in regard to it, as stated by Judge Thompson in his treatise on Negligence (vol. 1, § 10), was adopted, and is substantially as follows: When the legislature of a State, or the council of a municipal corporation, having in view the promotion of the safety of the public, or of individual members of the public, commands or forbids the doing of a particular act, the general conception of the courts, and the only one that is reconcilable with reason, is that a failure to do the act commanded, or doing the act prohibited, is negligence as mere matter of law, or otherwise called negligence Per se; and this, irrespective of all questions of the exercise of prudence, diligence, care, or skill. So that if it is the proximate cause of hurt or damage to another, and if that other is without contributory fault, the case is decided in his favor, and all that remains is to assess his damages. The jury, of course, must find the facts. . . .

Violations of the provisions of G.S. 20--150(c) have been held by this Court to constitute negligence Per se. Carter v. Scheidt, 261 N.C. 702, 136 S.E.2d 105; Adams v. Godwin, supra; Cole .v Lumber Co., 230 N.C. 616, 55 S.E.2d 86; Donivant v. Swaim, 229 N.C. 114, 47 S.E.2d 707.

Defendants rely heavily on the case of Adams v. Godwin, supra, as authority for their position that the trial judge correctly charged. In that case, all the evidence showed that plaintiff and defendant were both proceeding in an easterly direction on Main Street in the corporate limits of the Town of Benson and plaintiff attempted to pass as the vehicles approached an unmarked intersection with Fayetteville Street. Defendant, without giving a signal, turned her vehicle to the left across the center line of the street and into the right side of plaintiff's automobile. The jury answered issues in favor of plaintiff and defendant appealed. Defendant assigned as error the following portin of the trial judge's charge:

. . . 'I instruct you, ladies and gentlemen, that if you are satisfied by the greater weight of the evidence that there were no signs put there, no appropriate signs put there by the State Highway Commission, then it would not constitute an intersection within the meaning of that statute and would place no duty upon the driver of the Edsel automobile.'

In granting a new trial on the ground that the charge permitted plaintiff to ignore the intersection because it was not marked by the Highway Commission, we held the charge to be erroneous since G.S. 20--150(c) requires one to observe street intersections within corporate limits Whether marked or unmarked. Although very similar factually, this case is readily distinguishable from the case before us because in Adams there was no contention or evidence that plaintiff did not know she was in the town limits of Benson. The crux of the question here presented is whether plaintiff is excused from the application of the doctrine of negligence per se because he did not know and did not have reasonable grounds to know that he was in the Town of Rose Hill. In this connection, plaintiff relies on the cases of Dawson v. Jennette, 278 N.C. 438, 180 S.E.2d 121, and Kelly v. Ashburn, 256 N.C. 338, 123 S.E.2d 775, to sustain his contention that the trial judge did not correctly charge.

The pertinent holding in Kelly v. Ashburn, supra, is correctly summarized in headnote 4 of that case, to wit:

Where a motorist who is unfamiliar with an intersection approaches it along a street upon which a stop sign had been erected but had been removed, his rights in entering the intersection must be judged by the rule of care of an ordinarily prudent man under the circumstances confronting him, unaffected by the fact that a stop sign had been erected upon the street upon which he was traveling.

In Dawson v. Jennette, supra, Justice Lake approved the holding in Kelly v. Ashburn, supra, as it related to passing in intersections. The principles set forth in Kelly and Dawson would allow us to easily solve the crucial question before us. However, these cases are distinguishable from instant case because they construed the provisions of G.S. 20--158, Vehicle Control Signs and Signals. G.S. 20--158 specifically provides that the failure to stop, in violation of its provisions, shall not be considered contributory negligence per se in any action for injury to person or property.

We find ample authority for the proposition that the Legislature may make the doing of an act or the omission to do some act a crime even in the absence of criminal intent. The doing of such act or the failure to do the required act constitutes the crime and the knowledge or ignorance of its criminal character are immaterial circumstances on the question of guilt. The only fact to be determined in such cases is whether the defendant did the act prohibited or failed to do the act which the statute required. State v. McLean, 121 N.C. 589, 28 S.E. 140; Accord: United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604; Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930; Borderland Construction Co. v. State, 49 Ariz. 523, 68 P.2d 207; People v. Fernow, 286 Ill. 627, 122 N.E. 155; People v. Snowburger, 113 Mich. 86, 71 N.W. 497...