Barney v. North Carolina State Highway Commission
192 S.E.2d 273
N.C.
1972
Check Treatment
LAKE, Justice.

Upon an appeal from the Industrial Commission in a proceeding under the Tort Claims Act, a finding of fact by the *284 Commission, other than a jurisdictional finding, is conclusive if there is any competent evidence in the record to support it. Bailey v. Dept. of Mental Health, 272 N.C. 680, 159 S.E. 2d 28; Mica Co. v. Board of Education, 246 N.C. 714, 100 S.E. 2d 72. The Commission’s designation of a declaration by it as a finding of fact is not conclusive, however. Brown v. Board of Education, 269 N.C. 667, 153 S.E. 2d 335. Negligence and contributory negligence are mixed questions of law and fact and, upon appeal, the reviewing court must determine whether facts found by the Commission support its conclusion of contributory negligence. Brown v. Board of Education, supra. See also, Garner v. Pittman, 237 N.C. 328, 75 S.E. 2d 111.

Under the Tort Claims Act negligence, contributory negligence and proximate cause, as well as the applicability of the doctrine of respondeat superior, are to be determined under the same rules as those applicable to litigation between private individuals. MacFarlane v. Wildlife Resources Commission, 244 N.C. 385, 93 S.E. 2d 557. See also: Crawford v. Board of Education, 275 N.C. 354, 168 S.E. 2d 33; Trust Co. v. Board of Education, 251 N.C. 603, 111 S.E. 2d 844. G.S. 143-291 provides, “The Industrial Commission shall determine whether or not each individual claim arose as a result of a negligent act of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina.”

The Commission erred, as a matter of law, in its “comment” that in order for a claimant to prevail in a proceeding under the Tort Claims Act, the claimant must show that he was not guilty of contributory negligence. The case of Floyd v. Highway Commission, 241 N.C. 461, 85 S.E. 2d 703, cited by the Commission as authority for this proposition, did so hold. MacFarlane v. Wildlife Resources Commission, supra, held likewise. However, after the decision of this Court in Floyd v. Highway Commission, supra, and after the accident giving rise to the claim in MacFarlane v. Wildlife Resources Commission, supra, the Legislature amended the Tort Claims Act by adding thereto G.S. 143-299.1, which expressly provides that contributory negligence “shall be deemed to be a matter of defense * * * and such State department, institution or agency shall have the burden of proving that the claimant or the person in whose *285 behalf the claim is asserted was guilty of contributory negligence.” Consequently, Floyd v. Highway Commission, supra, and MacFarlane v. Wildlife Resources Commission, supra, may no longer be considered authoritative on this question.

The Commission’s error of law as to the burden of proof on the issue of contributory negligence led it into an erroneous conclusion that the claimant’s intestate was guilty of contributory negligence. While inferences may be drawn by the Commission from facts leading reasonably thereto, a conclusion of negligence or contributory negligence may not be drawn in favor of the party having the burden of proof upon no basis other than speculation and unproved possibilities. The facts found by the Commission do not support its conclusion that Mrs. Handy was guilty of contributory negligence and the evidence in the record would not support a finding of fact reasonably permitting such an inference.

No witness saw Mrs. Handy’s automobile prior to the collision. The only evidence of its speed lies in the skid marks on the road. There is no evidence that she failed to keep a lookout or that she did not have her automobile under control prior to the sudden movement of the motor grader into her lane of travel.

It is well established that a driver of an automobile, faced with a sudden emergency, is not held to the best possible choice of a means to avoid a collision but is held only to the care reasonably to be expected of one suddenly confronted with such a situation. Forgy v. Schwartz, 262 N.C. 185, 186 S.E. 2d 668; Simmons v. Rogers, 247 N.C. 340, 100 S.E. 2d 849. As observed by Chief Justice Devin in Morgan v. Saunders, 236 N.C. 162, 72 S.E. 2d 411, “It has several times been stated by this Court that the driver of an automobile who is himself observing the law [citation omitted] in meeting and passing an automobile proceeding in the opposite direction has the right ordinarily to assume that the driver of the approaching automobile will also observe the rule and avoid a collision.” A motorist is not bound to anticipate negligent acts on the part of other drivers. Williams v. Tucker, 259 N.C. 214, 130 S.E. 2d 306. In the absence of anything which gives or should give him notice to the contrary he is entitled, even to the last moment, to assume and to act upon the assumption that the driver of another vehicle upon, or about to enter, a public highway will comply *286 with the law in the operation of his vehicle and will yield the right of way when required by the law to do so. Carr v. Lee, 249 N.C. 712, 107 S.E. 2d 544; Simmons v. Rogers, supra; Garner v. Pittman, supra.

All of the evidence is to the effect that the motor grader had not previously been in Mrs. Handy’s proper lane of travel and that, while clearly visible, it was moving very slowly in her direction in the lane of traffic to her left, or upon the shoulder on that side of the road. The record shows nothing which should have indicated to Mrs. Handy that the driver of the motor grader was unaware of the approach of her vehicle, or that he intended to cross over the center line into her lane of travel until he suddenly did so. According to the findings by the Commission, the motor grader moved backward in an arc from four to seven feet across the center line into Mrs. Handy’s lane of traffic before the impact. Even at a speed of five miles per hour, such a movement across the center line would have taken, at the most, one second. The nature of the damage to the Handy vehicle permits of no conclusion other than that the motor grader backed into and struck the Handy vehicle as Mrs. Handy was attempting to avoid a collision by applying her brakes and driving onto the shoulder.

Light skid marks left on the pavement by the Handy vehicle, beginning 33 feet before it was struck, do not, standing alone, permit a finding of excessive speed. Clayton v. Rimmer, 262 N.C. 302, 136 S.E. 2d 562; Williamson v. Randall, 248 N.C. 20, 102 S.E. 2d 381. There is, therefore, no evidence in this record to support a finding of fact which, in turn, would support the conclusion that Mrs. Handy failed to keep a proper lookout, failed to keep her car under control, was driving at a speed in excess of that which was reasonable and prudent under prevailing conditions or was otherwise guilty of negligence which was one of the proximate causes of the collision. All of the evidence is to the effect that the force of the impact knocked her from the driver’s seat and rendered her unconscious immediately. The further progress of her vehicle, even if not due entirely to the force of the blow delivered by the motor grader, cannot be attributed to any act or omission by Mrs. Handy.

The judgment of the Court of Appeals must, therefore, be reversed and this proceeding remanded to that court for the *287 entry by it of a judgment reversing the order of the Industrial Commission and further remanding the matter to the Commission for its determination of the amount of damages to be awarded the claimant pursuant to G.S. 143-291, and for the entry of an award in favor of the claimant in that amount, not to exceed $15,000.00, that being the maximum award permitted by the statute as it read at the time this accident occurred.

Reversed and remanded.