Yellow Cab Co. of Charlotte v. Sanders

• Decision Date: 24 November 1943
• Docket Number: 526.
• Citation: 27 S.E.2d 631,223 N.C. 626
• Parties: YELLOW CAB CO. OF CHARLOTTE, Inc., v. SANDERS.
• Court: North Carolina Supreme Court

27 S.E.2d 631

223 N.C. 626

YELLOW CAB CO. OF CHARLOTTE, Inc., v. SANDERS.

No. 526.

Supreme Court of North Carolina

November 24, 1943

This is an action to recover damages for injury to a yellow taxi cab of the plaintiff, driven by one Gainey, inflicted in a collision with an automobile of the defendant driven by himself, alleged to have been proximately caused by the negligence of the defendant, wherein the defendant interposed a plea of contributory negligence in bar of any recovery by the plaintiff. There is also a counter action by the defendant against the plaintiff for damages for injury inflicted on his automobile in the same collision alleged to have been proximately caused by the negligence of the plaintiff.

The jury for their verdict, upon appropriate issues, found that the plaintiff's automobile was damaged by the negligence of the defendant, and that the plaintiff by its own negligence contributed to its damage, and that neither party was entitled to recover.

From judgment predicated on the verdict the plaintiff appealed assigning errors.

H.C Jones and Brock, Barkley, both of Charlotte, for appellant.

Frank H. Kennedy and Hunter M. Jones, both of Charlotte, for appellee.

SCHENCK Justice.

The plaintiff alleged and offered evidence tending to prove that its yellow taxi cab, driven by one Gainey, was being driven in a northern direction on Poplar Street in the City of Charlotte, toward the intersection of Poplar Street and Third Street, that when the cab reached Third Street it was stopped, and the driver looked in both directions, east and west, that he observed only the defendant's automobile approaching from his right, from the east coming westward toward the intersection; that the defendant's automobile was 125 feet, one-half block from the intersection; that the plaintiff's cab was then driven into the intersection with the view to crossing Third Street, and proceeded two-thirds of the way across Third Street when it was struck by the defendant's automobile on its right side and was hurled to the northwest corner of the intersection; that the plaintiff's taxi cab was being driven between 15 and 20 miles per hour and the defendant's automobile was being driven between 25 and 35 miles per hour when they entered the intersection; that the defendant's automobile did not slacken its speed as it approached the intersection.

The defendant alleged and offered evidence tending to prove that his automobile, driven by him in a western direction on Third Street, toward the intersection of Third Street and Poplar Street, and the plaintiff's taxi cab, driven in a northern direction on Poplar Street, approached or entered the intersection of said streets at approximately the same time; that the defendant's automobile on Third Street was to the right of the plaintiff's taxi cab on Poplar Street; that as the defendant's automobile entered the intersection the plaintiff's cab was speeded up to cross in front of defendant's automobile, and the said automobile collided with said taxi cab on its right side.

It will be observed that it is contended by the plaintiff that his taxi cab reached the intersection of the two streets an appreciable time before the defendant's automobile reached it, that the defendant's automobile was 125 feet from the intersection when plaintiff's cab reached it, and therefore that the driver of the plaintiff's cab had the right of way in the intersection. While, on the contrary, it is contended by the defendant that the two motor vehicles reached the intersection at approximately the same time, and that the defendant's automobile being on the right side of the plaintiff's cab, the driver of the defendant's automobile had the right of way in the intersection.

There appear in the record and are set out in the brief of the plaintiff, appellant, as exceptive assignments of error the following:

"The Court failed to instruct the jury and to explain to the jury the law applicable to plaintiff's evidence and contentions with regard to plaintiff's right to proceed across the intersection; that, while the Court specifically charged the jury with regard to the defendant's right of way if the two cars approached the intersection at approximately the same time, he failed to charge the jury with regard to the plaintiff's right to proceed if its cab entered the intersection when the defendant's car was an appreciable distance away, which is plaintiff's Exception ...