Wooten v. Russell, 235

• Decision Date: 22 November 1961
• Docket Number: No. 235,235
• Court: North Carolina Supreme Court
• Parties: Simeon Augustus WOOTEN, Sr. v. Joseph L. RUSSELL. Simeon Augustus WOOTEN, Jr., by his Next Friend, Jennie Lane Wooten, v. Joseph L. RUSSELL.

Page 603

122 S.E.2d 603

255 N.C. 699

Simeon Augustus WOOTEN, Sr. v. Joseph L. RUSSELL.

Simeon Augustus WOOTEN, Jr., by his Next Friend, Jennie Lane Wooten, v. Joseph L. RUSSELL.

No. 235

Supreme Court of North Carolina.

Nov. 22, 1961

Ruark, Young, Moore & Henderson, Raleigh, and Moore & Moore, Wilson, for plaintiff appellants.

Lucas, Rand & Rose, Wilson, and Critcher & Gurganus, Williamston, for defendant appellee.

RODMAN, Justice.

The first question for determination is: Should defendant's motion for nonsuit have been allowed? Young Wooten testified that defendant did not stop at the intersection as commanded by the stop signs. While a failure to stop and yield the right of way to traffic on the dominant highway is not negligence per se, G.S. § 20-158, it is evidence of negligence, State v. Sealy, 253 N.C. 802, 117 S.E.2d 793; Jordan v. Blackwelder, 250 N.C. 189, 108 S.E.2d 429; Johnson v. Bell, 234 N.C. 522, 67 S.E.2d 658; and, when the proximate cause of injury, is sufficient to support a verdict for plaintiff.

Defendant in his brief does not contend there was no evidence of his negligence. He insists the nonsuit was properly allowed because plaintiffs' evidence establishes his negligence contributing to the collision and the resulting damages. If so, it must be established by evidence from which only that inference can be drawn. If differing and conflicting inferences can be drawn, the jury must do so.

The law applicable to motorists on dominant and servient highways when approaching an intersection has been stated in numerous cases. It is said in Peeden v. Tait, 254 N.C. 489, 119 S.E.2d 450, 452: 'The rule in this State is that the operator of an automobile traveling upon a main or through highway and approaching a crossover or an intersection is under no duty to anticipate that the operator of an automobile approaching such intersection will fail to stop or yield to traffic on the main or through highway and, in the absence of anything which gives or should give notice of the contrary, he will be entitled to assume and to act upon the assumption, even to the last minute, that the operator of the automobile on the intersecting highways or cross-over will stop before entering such highway.'

It is said in Jordan v. Blackwelder, supra [250 N.C. 189, 108 S.E.2d 432]: 'This latter statute (G.S. § 20-158) not only requires the driver on the servient highway or street to stop, but such driver is further required, after stopping, to exercise due care to see that he may enter or cross the dominant highway or street in safety before entering thereon. ' Williamson v. Randall, 248 N.C. 20, 102 S.E.2d 381; Jackson v. McCoury, 247 N.C. 502, 101 S.E.2d 377; Caughron v. Walker, 243 N.C. 153, 90 S.E.2d 305; Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514; Loving v. Whitton, 241 N.C. 273, 84 S.E.2d 919; Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683.

Plaintiff's evidence fixes his speed at 'about 35' m. p. h. It is not suggested that such a speed is unreasonable or prohibited. Plaintiff testified: 'When I got about a half a block from the intersection of Vance Street and Bynum Street I saw the lights of the vehicle approaching so I took my foot off of the gas, instinctively kind of, and as I approached the intersection he appeared to be stopping. He appeared to be stopping but he...