Yost v. Hall

• Decision Date: 18 April 1951
• Docket Number: No. 379,379
• Citation: 233 N.C. 463,64 S.E.2d 554
• Parties: YOST, v. HALL et al.
• Court: North Carolina Supreme Court

Page 554

64 S.E.2d 554

233 N.C. 463

YOST, v.HALL et al.

No. 379

Supreme Court of North Carolina.

April 18, 1951

Linn & Shuford, Salisbury, for plaintiffappellee.

Deal & Hutchins, Winston-Salem, Craige & Craige, Salisbury, and Smith, Sapp, Moore & Smith, Greensboro, for defendantappellants, Myron H. Hall and William Francis Broaddus.

C. H. Gover, Charlotte, for additional defendantappellee, Retail Credit Co.

BARNHILL, Justice.

The absence of direct testimony in respect to the circumstances surrounding the collision is provocative of much speculation as to just what did happen.Such speculation might well generate contradictory surmises.But we are interested only in the fact situation disclosed by such evidence as the parties were able to produce.

If the two automobiles approached the intersection at approximately the same time, then it was the duty of the defendants to yield the right of way to Yost.This, for two reasons: (1) the Yost car was to their right, G.S. § 20-155(a), and (2)they were traveling on the servient highway, G.S. § 20-158.

There was no eyewitness account of the collision.In appraising the testimony for the purpose of determining whether there is any evidence of negligence on the part of the defendants, in that they breached this duty, sufficient to warant the submission of the cause to a jury, we are driven in large measure--though not altogether--to the consideration of the physical facts developed by the testimony.Even so, physical facts are sometimes more convincing than oral testimony.Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88.

The court, in the absence of proof to the contrary, may not assume that either motorist was operating his vehicle in excess of the legal limit permitted under the circumstances.We review the evidence with that in mind.

The two automobiles collided within the intersection.They arrived at the same point at the same time.Their approach was so timed that both could not proceed in safety.If neither stopped, a collision was inevitable.

The Hall car evidently entered the intersection when the Yost vehicle was at least four feet away.But the fact a motorist on a servient road reaches the intersection a hairsbreadth ahead of one on the dominant highway does not give him the right to proceed.It is his duty to stop and yield the right of way unless the motorist on the dominant highway is a sufficient distance from the intersection to warrant the assumption that he can cross in safety before the other vehicle, operated at a reasonable speed, reaches the crossing.State v. Hill, 233 N.C. 61, 62 S.E.2d 532, and cases cited.

Shortly after the accident Broaddus, in the presence of Hall, made the statement that he did not see the railroad track or the stop sign.They were in a hurry.He told the officer that he did not remember seeing the Yost car until he hit it.When asked if he saw the stop sign, he replied: 'I won't say I did nor I won't say I didn't; I don't remember seeing the sign. ' While each defendant testified his injury produced a state of retrograde amnesia and that is the reason they cannot say whether they saw the sign or the Yost car, no such qualification was attached to these statements made shortly after the collision.So then, it was for the jury to say whether the statements amounted to nothing more than a disavowal of memory.

But the defendants insist the fact the Yost automobile continued on for a distance of ninety feet after the collision indicates that Yost was traveling at an excessive speed at the time.Standing alone and unqualified by any other circumstance, this fact might compel, or at least permit, that inference.This we need not now decide, for it appears that Yost was in a dazed or unconscious condition, was mortally wounded, and died in less than twenty hours after the collision.It may well be he was in no condition to apply his brakes or make any other effort to stop his vehicle.The distance he traveled after the collision, under the circumstances here disclosed, was for the consideration of the jury.Bailey v. Michael, 231 N.C. 404, 57 S.E.2d 372.

The evidence, considered in the light most favorable to plaintiff clearly warrants the inference that the two automobiles approached the intersection at approximately the same time, and defendants failed to see, or seeing, failed to heed the presence of Yost approaching the intersection on the dominant road.Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239.

The jury's verdict on the first three issues is determinative.Any exceptions or assignments of error relied on by defendants which do not challenge the validity of the trial in respect to the verdict as rendered may be by-passed.Even if they point out error in the trial, the error must be deemed immaterial and harmless.Winborne v. Lloyd, 209 N.C. 483, 183 S.E. 756;Randle v. Grady, 228 N.C. 159, 45 S.E.2d 35;In re Will of Kestler, 228 N.C. 215, 44 S.E.2d 867;Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909;Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342.

Certain of our highways are built and maintained in part out of funds contributed by the Federal government.They form links in an interstate system and are designated as U. S. highways.They are, nonetheless, State highways under the supervision and control of the State Highway and Public Works Commission.G.S. § 20-158 is applicable to these just as it is to other State highways.The contention that Highway 52 was not a dominant or through highway for want of authority in the State Commission to so designate it is without validity.

When a person survives an accident but is unable to testify concerning the events leading to the accident, by reason of the loss of memory resulting from injuries he sustained in the accident, it will be presumed, in the absence of evidence to the contrary, that he exercised due care.Anno. 141 A.L.R. 872.The defendants seek to invoke this rule and assert that the court's charge in respect thereto deprives them of the benefit thereof.In this we cannot concur.

Presumptions of this type are created to fill a complete hiatus in the testimony.They are 'bats of the law, flitting in the twilight, but disappearing in the sunshine of actual facts. 'Mockowik v. Kansas City, St. J. & C. B. Railroad Co., 196 Mo. 550, 94 S.W. 256, 262.If there is any evidence to the contrary, the presumption fades out of the picture.It cannot be accorded evidential value or probative force, or be weighed against the evidence offered.In re Will of Wall, 223 N.C. 591, 27 S.E.2d 728.

The rule has no application here for the reason there is evidence of negligence on the part of defendants to be considered by the jury.On this record the loss of memory, if it be a fact--and that was for the jury to decide--should not be considered either in favor of or against the defendants on the issue of negligence.

In considering this rule it is well to note that the absence of evidence of negligence on the part of one of the parties involved in a collision cannot be used to create a presumption of negligence on the part of the other.

In concluding its charge on the first issue, the court instructed the jury as follows:

'Upon the evidence you are instructed that if the plaintiff has satisfied you from the evidence and by the greater weight thereof that the defendants, in the operation of their automobile were negligent, that is, the defendants Hall and Broaddus, and has further satisfied you from the evidence and by the greater weight thereof that such negligence was the proximate cause of injury and death of the plaintiff's intestate and injury to his property, then it would be your duty to answer that issue yes.If the plaintiff has failed to so satisfy you, it will be your duty to answer that issue no.'

This instruction is in general terms and is defective in that it fails to point out the particular...