Williams v. Sossoman's Funeral Home, Inc.

• Decision Date: 04 June 1958
• Docket Number: No. 669,669
• Citation: Williams v. Sossoman's Funeral Home, Inc., 103 S.E.2d 714, 248 N.C. 524 (N.C. 1958)
• Court: North Carolina Supreme Court
• Parties: T. C. WILLIAMS, Jr., and Motors Insurance Corporation v. SOSSOMAN'S FUNERAL HOME, Inc., and William E. Miller.

Page 714

103 S.E.2d 714

248 N.C. 524

T. C. WILLIAMS, Jr., and Motors Insurance Corporation v.SOSSOMAN'S FUNERAL HOME, Inc., and William E. Miller.

No. 669

Supreme Court of North Carolina.

June 4, 1958

Smith, Moore, Smith, Schell & Hunter, Greensboro, for defendantappellants.

D. Emerson Scarborough, Yanceyville, and H. Clay Hemric, Burlington, for plaintiffappellees.

RODMAN, Justice.

By motions to nonsuitdefendants challenge the right of plaintiffs to recover.The reasons assigned are: (1)Defendant's vehicle was 'an authorized emergency vehicle' on an emergency errand, and as such, given by statute and ordinance priority in the right to use the intersection and the right to travel at a speed made unlawful as to other vehicles.They merely exercised the rights accorded the ambulance, and negligence cannot be predicated on the exercise of legal rights.(2) Williams, operator of the Chevrolet, was contributorily negligent in (a) failing to yield the right of way to defendant's vehicle and (b) in failing to maintain a reasonable and proper lookout for emergency and other vehicles on the intersecting highway.

This collision occurred in a municipality.Hence the provisions of G.S. § 20-158(c), relating to traffic lights outside of towns, has no application.No ordinance of Morganton declaring the consequences of a failure to heed the light was offered in evidence.The operators of the motor vehicles were, therefore, to interpret the signals and give that obedience thereto which a reasonably prudent operator would give.Wilson v. Kennedy, 248 N.C. 74, 102 S.E.2d 459.

The use of these lights is too general and well-known to raise any doubt as to meaning of each color and what is expeoted of an operator when confronted with a red light.It tells him to stop.Defendants recognize this meaning and ordinary application.They concede for the purpose of this appeal Williams had the green light and Miller, the red or stop light.But they say the red did not tell Miller to stop because (a)the Statestatute, G.S. § 20-156, gave Miller the right of way, and (b) Morganton's ordinance declared authorized emergency vehicles may 'proceed past red or stop signal or stop sign but only after slowing down as may be necessary for operation.'

These laws do accord a privilege, but to exercise the privilege one must establish that he belongs to the privileged class.As said in 35 C.J.S.Exemptions§ 160, p. 185: 'As a general rule, in an action or proceeding to enforce or establish an exemption right the burden is on him who seeks to enforce or establish it.'Applications of the rule are illustrated in Sabine v. Gill, 229 N.C. 599, 51 S.E.2d 1;Henderson v. Gill, 229 N.C. 313, 49 S.E.2d 754;State v. Kelly, 186 N.C. 365, 119 S.E. 755;State v. Simmons, 143 N.C. 613, 56 S.E. 701;State v. Hayne, 88 N.C. 625;State v. Hogg, 6 N.C. 319;Williams v. Branson, 5 N.C. 417;Oakley v. Allegheny County, 128 Pa.Super. 8, 193 A. 316.

For the purpose of this appeal we may, as the parties and trial court apparently did, treat 'official business,' when applied to private automobiles, as meaning a trip made when the operator of the vehicle bona fide believes an emergency exists which requires expeditious movement.If the driver in fact has such belief and meets the statutory test by giving warning, he is accorded the necessary privilege.The audible sound required by the statute is one heard and understood or which should have been heard and its meaning understood by a reasonably prudent operator called upon to yield the right of way.McEwen Funeral Service, Inc v. Charlotte City Coach Lines, 248 N.C. 146, 102 S.E.2d 816.

Notwithstanding the unequivocal evidence from witnesses for defendants that they heard the siren when the ambulance began its journey and continued to hear it until the moment of the impact, the equally unequivocal testimony of the occupants of the Chevrolet and another witness just a few feet from the intersection that they did not hear the siren until the ambulance was within a few feet of the intersection is some evidence that the siren was not in fact sounded in time to provide a warning to the plaintiffs.Carruthers v. Atlantic & Y. R. R., 218 N.C. 49, 9 S.E.2d 498;Johnson v. Atlantic Coast Line R. R. Co., 205 N.C. 127, 170 S.E. 120;Edwards v. Atlantic Coast Line R. R. Co., 129 N.C. 78, 39 S.E. 730.

With this discrepancy in the evidence, the court could not, as a matter of law, hold that Miller had complied with the terms of the statute and was entitled to the right of way.

It is true, as defendants say, that the ordinance of Morganton which permits ambulances to 'proceed past red or stop signals' does not require the siren to be sounded, but it does limit their right to proceed 'only after slowing down as may be necessary for operation.'This necessarily means, we think, that the special privilege can only be exercised when the ambulance can proceed with safety to others who have a legal invitation to use the intersection.To give it any other interpretation would change an ordinance intended to facilitate the safe movement of vehicles across intersecting highways into a trap for those invited to enter.

With the burden of proof on defendants to establish they belonged in the privileged class described in the statute and ordinance, the court could not, as a matter of law, hold that they had the prior right to use the intersection.If they did not have such right, plaintiffs were not, as a matter of law, negligent in accepting the invitation extended to them by the green light.

The assertion that the evidence establishes without contradiction that Williams failed to exercise the vigilance of a reasonably prudent driver is also raised by exceptions to the charge and is discussed in that connection.

The motion to nonsuit was properly overruled and the issue of contributory negligence was properly submitted to the jury.

Assignments of error 8, 9, 10, 11, 12, 13, 14, and 15 question the accuracy and sufficiency of the charge as it relates to the duty of an operator to look for the movement of other vehicles at intersections and the duty of an operator of an ordinary vehicle to yield the right of way to emergency vehicles.

The court, in charging the jury, gave as the basic rules applicable to the rights and duties of plaintiff Williams, the law as stated in Cox v. Hennis Freight Lines, 236 N.C....