165 S.E.2d 671 | N.C. Ct. App. | 1969
Tommy Nelson ARANT, by his next Friend, W. H. Rooker
v.
Ernest Monroe RANSOM, Evie Lee Sykes Ransom and Alfred B. Armstrong.
Court of Appeals of North Carolina.
*672 Koy E. Dawkins, Monroe, for plaintiff appellee.
Carpenter, Webb & Golding by John C. Golding and Michael K. Gordon, Charlotte, for defendant appellee Armstrong.
Smith, Griffin, Smith & Clark by C. Frank Griffin, Monroe, for defendant appellants Ransom.
BRITT, Judge.
Defendants Ransom filed in this Court a demurrer ore tenus to the complaint, contending that the complaint alleges no facts showing actionable negligence on the part of defendants Ransom but affirmatively discloses that the sole proximate cause of the collision was the negligence of defendant Armstrong.
*673 In support of their demurrer, defendants Ransom cite Hout v. Harvell, 270 N.C. 274, 154 S.E.2d 41. We think Hout is clearly distinguishable from the case before us. In Hout, the car in which plaintiff was riding as a passenger was traveling in the opposite direction from the car with which it collided; plaintiff alleged that the driver of the car in which he was riding suddenly turned to the left in front of the other car but that the operator of the oncoming car was negligent in failing to keep a proper lookout and maintain proper control and was driving at an excessive rate of speed. The court held that in Hout there was no allegation of any fact or circumstance sufficient to give Mrs. Harvell, the operator of the oncoming car, timely notice that the driver of the car in which plaintiff was riding intended to make a left turn directly in front of her in order to enter a filling station on his left side of the highway; on the contrary, plaintiff alleged that her driver turned without giving a proper signal. The court held that Harvells' demurrer was properly sustained because under the circumstances detailed in the complaint, irrespective of her speed or failure to keep a proper lookout, Mrs. Harvell could not have avoided a collision with the car in which plaintiff was riding; that the conduct of plaintiff's driver made the collision inevitable, insulated any prior negligence of Mrs. Harvell and constituted the sole proximate cause of the collision.
In the case before us, the automobiles were traveling in the same direction in a 35 mph speed zone in a residential section near the town of Bladenboro. Although plaintiff alleged that the driver of the car in which he was traveling turned suddenly to the left in order to enter a private driveway on the left side of the road, he alleged, inter alia, that defendant Ernest Ransom was traveling at a speed in excess of 35 mph, was driving while under the influence of an intoxicant and failed to give any signal of his intention to pass the vehicle in which plaintiff was riding.
The demurrer interposed in this Court is overruled.
Defendants Ransom assign as error a portion of the judge's charge defining "under the influence" of intoxicants. While the challenged instruction is open to criticism, we are unable to conclude that the appellants were prejudiced thereby. Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486. It is well established in this jurisdiction that the burden is on the appellant not only to show error, but that the alleged error was prejudicial and amounted to the denial of some substantial right. 1 Strong, N.C. Index 2d, Appeal and Error, § 46, p. 190. In the absence of specific provisions in particular statutes which are susceptible of a contrary interpretation, the violation of a motor vehicle traffic regulation constitutes negligence per se. 1 Strong, N.C. Index 2d, Automobiles, § 7, p. 383; Correll v. Gaskins, 263 N.C. 212, 139 S.E.2d 202. One of plaintiff's allegations of negligence against defendants Ransom was that at the time of the collision defendant Ernest Ransom was operating an automobile while under the influence of an intoxicant, in violation of G.S. § 20-138. A violation of this statute is negligence per se. Southern Nat. Bank v. Lindsey, 264 N.C. 585, 142 S.E.2d 357. As a witness called by plaintiff, defendant Ernest Ransom testified that he pleaded guilty in the Bladen County Court to driving under the influence of an intoxicant in violation of G.S. § 20-138 on the occasion in question. In view of this admission of violating the statute, the challenged portion of the charge was not prejudicial to the defendants Ransom, and the assignment of error relating thereto is overruled.
We have considered the other assignments of error brought forward and argued *674 in appellants' brief, but finding them without merit, they are overruled.
No error.
MALLARD, C. J., and PARKER, J., concur.
