Wooten v. Smith
| Decision Date | 01 February 1939 |
| Docket Number | 595. |
| Citation | 200 S.E. 921,215 N.C. 48 |
| Parties | WOOTEN v. SMITH et ux. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Columbus County; N. A. Sinclair, Judge.
Action by Mrs. E. W. Wooten, administratrix of Edgar Wallace Wooten deceased, against Seth L. Smith and wife to recover for injuries and death of plaintiff's intestate resulting from a collision between a bicycle on which the intestate was riding and defendants' automobile. Judgment for plaintiff, and defendants appeal.
New trial.
In action for infant bicyclist's death resulting from intersectional collision between bicycle and automobile where shrubs and wall obstructed vision, evidence was sufficient to raise jury question concerning motorist's negligence. Pub.Laws 1935, c. 311, §§ 2, 6.
Action for damages for injury and death of plaintiff's intestate alleged to have been caused by a collision between a bicycle on which he was riding and defendants' automobile negligently driven by defendant Mrs. Seth L. Smith. The collision occurred at the intersection of Madison and Williamson Streets in the town of Whiteville, North Carolina.
Upon issues submitted to the jury there was verdict for the plaintiff, and from judgment in accord therewith, defendants appealed.
Tucker & Proctor, Irvin B. Tucker, Edward K. Proctor, and I. B Tucker, Jr., all of Whiteville, for appellants.
Greer & Greer, of Whiteville, and Varser, McIntyre & Henry, of Lumberton, for appellee.
The appellants' principal assignments of error relate to the denial of their motion for judgment of nonsuit, and to exceptions noted to certain instructions given by the trial judge in his charge to the jury.
1. Briefly stated the evidence offered by the plaintiff tended to show that on March 1, 1936, about 2 o'clock P. M., plaintiff's intestate, a bright boy of fourteen, was riding his bicycle proceeding southward on Madison Street in Whiteville. The boy was on the west side of the street (which was a North and South paved thoroughfare and state highway thirty feet wide from curb to curb), and was approaching the intersection of Williamson Street (a paved East and West street) when defendants' automobile, driven by defendant Mrs. Seth L. Smith, came out of Williamson Street, proceeding Eastwardly into the intersection, and a collision between the bicycle and automobile occurred there, resulting in the death of plaintiff's intestate.
It was also in evidence that the lot on the Northwest corner of the intersection had a retaining wall on the Madison Street side three and a half feet high, and that the lawn sloped back westwardly to a maximum height of five and a half feet. Williamson Street "goes up-grade" from Madison Street. Between the paved sidewalk and the street curb on Madison Street, in front of this lot, were several large shrubs, three to seven feet tall. Defendants' automobile was being driven at a speed of twelve to fifteen miles per hour. After the collision there were discovered dents on the door and fender on the left side of defendants' automobile. There was no evidence of a town ordinance or any regulation by local authorities or by the State Highway and Public Works Commission with reference to this intersection.
Without undertaking here to recite the evidence in detail, it would seem from the description of the unfortunate occurrence given by the plaintiff's only eye-witness that the automobile was first in the intersection and that the bicycle approaching from the left struck the automobile on its left side, giving rise to the inference that the driver of the automobile had the right of way, under the rule prescribed by Public Laws 1927, Chap. 148, sec. 18.
In order to determine what duty, if any, the driver of defendants' automobile under the circumstances of this case, in approaching the street intersection from Williamson Street, owed to the rider of a bicycle on Madison Street, it is necessary to examine the statutory driving regulations with reference to intersections of highways.
The driving regulations of C.S. § 2616, requiring the driver of an automobile approaching an intersecting highway, when the view was obstructed, to give a timely signal and to reduce speed to ten miles per hour, were superseded by the provisions of Chap. 272, Public Laws of 1925, wherein the speed limit of automobiles approaching and entering an intersection of highways, when the view was obstructed, was increased to fifteen miles per hour. This provision was substantially re-enacted in the Uniform Motor Vehicle Act of 1927, c. 148, Art. 2, sec. 4, and all laws or clauses of laws in conflict were expressly repealed. Thus the law remained until the amendatory Act of 1935.
By Chap. 311, Public Laws of 1935, the speed restrictions contained in Art. 2, sec. 4, of the Uniform Motor Vehicle Law of 1927 were repealed, and the following pertinent regulations, in force at the time of the injury here complained of, were substituted in lieu thereof:
"(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.
(b) Where no special hazard exists the following speeds shall be lawful, but any speed in excess of said limits shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful: * * *
2. Twenty-five miles per...
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