197 S.E. 539 | N.C. | 1938
Civil action to recover damages for death of plaintiff's testator, alleged to have been caused by the wrongful act, default or neglect of the defendant.
Plaintiff's husband and testator, Dr. S. P. Sebastian, was killed in the early morning of 24 June, 1937, at the intersection of Benbow Road and Washington Street, Greensboro, N.C. when defendant's truck and trailer, driven by J. S. Poteat, collided with the Plymouth coupe operated by the deceased.
It is in evidence that by ordinance of the city of Greensboro, passed pursuant to authority contained in the Motor Vehicle Law, "Washington Street from Macon Street to McConnell Road" was designated a "Through Highway" with a lawful rate of speed not exceeding thirty miles an hour, and that upon the surface of the traveled portion of Benbow Road immediately before entering the intersection with Washington Street is the word "S T O P" in large letters painted upon the ground.
The evidence is conflicting as to the speed of both vehicles when they entered the intersection. The defendant's driver testified: "When entering that intersection I slowed my truck down to almost a standstill and placed it in second gear and looked in both directions. . . . I did not see anything. . . . I would not say I came to a complete stop, but almost. At the time I entered the intersection I was not *772 traveling over six or eight miles an hour. . . . When I was almost across the street this car came running right in front of me. I cut slightly to the right and his rear fender and wheel hung the left-hand side of my bumper."
There is other evidence that the truck entered the intersection around 30 or 40 miles an hour and that it was running too fast to stop.
The speed of Dr. Sebastian's car is variously estimated from 10 or 15 to 40 miles an hour. "It looked like it turned to the left and tried to get in front of the truck. . . . It did not stop. It looked like it tried to go in front of the truck. In fact, he did try to get in front of the truck. . . . The truck was going south and it was on its right-hand side of the street. It had nearly passed through the intersection. It lacked 7 or 8 feet of having passed through. Dr. Sebastian pulled his car to his left."
The following excerpt from the charge forms the basis of one of defendant's exceptive assignments of error:
"The court charges you that if you are satisfied by the greater weight or preponderance of the evidence that the driver of this truck failed to stop at this `Stop' sign and entered this intersection, that under the law that would be negligence per se, or negligence in itself."
Again, in respect of the mortuary table, the jury was instructed as follows: "The court charges you that his expectancy according to this table of mortality, as read to you by the court, the age of Dr. Sebastian being 61 years, that his expectancy is 13.5 years." Exception. The court had previously instructed the jury: "You have a right to consider this statute in making up your verdict, but you are not bound by it."
The following instruction, given in response to a request from the jury, is also assigned as error:
Juror: "There is one point of law, I believe, the jury is not entirely clear on, and that is the question of whether or not Dr. Sebastian in approaching this intersection had a right to assume from the fact that there was a `Stop' sign on Benbow Road that this truck would stop before entering the intersection, and just what right that assumption would give him."
The Court: "Gentlemen of the jury, this being a street designated by the statute or ordinance of the city of Greensboro as a stop street, any person operating a motor vehicle on Washington Street had a right to assume that any person operating a motor vehicle on Benbow Road would come to a stop before entering Washington Avenue."
The usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff, the damages being assessed at $28,500.
From judgment on the verdict, the defendant appeals, assigning errors. *773 There are a number of exceptions appearing on the record, but we deem it unnecessary to consider them seriatim as rulings upon the following will suffice to dispose of the present appeal.
First: Was it error for the court to instruct the jury that if the driver of defendant's truck failed to stop at the "S T O P" sign on Benbow Road before entering the intersection with Washington Street, a through highway, "under the law that would be negligence per se, or negligence in itself"? The law as presently written answers the question in the affirmative.
It is provided by ch. 407, Public Laws 1937, sec. 120, that the State Highway Commission with reference to State highways, and local authorities with reference to highways under their jurisdiction, may designate main traveled or through highways by erecting at the entrance thereto, from intersecting highways, signs notifying drivers of vehicles to come to a full stop before entering or crossing such designated highway, "and whenever any such signs have been so erected it shall be unlawful for the driver of any vehicle to fail to stop in obedience thereto. That no failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence."
If the failure to come to a full stop before entering or crossing a through highway in obedience to any such sign duly erected is not to be considered contributory negligence per se on the part of a plaintiff in any action at law for injury to person or property, but only evidence of such negligence, we think it follows as a necessary corollary or as the rationale of the statute, that where the party charged is a defendant in any such action, the failure so to stop is not to be considered negligenceper se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence. 1937 Supp. to N.C. Code of 1935 (Michie), sec. 2621 (305);Keller v. R. R.,
It will be observed that this exception is not concerned with section 103 of the Motor Vehicle Law, ch. 407, Public Laws 1937, which deals with speed restrictions and prima facie evidence arising from speeds in excess of the restrictions therein set out. Woods v. Freeman, ante, 314.
Second: Is there error in the instruction, "according to this table of mortality. . . the age of Dr. Sebastian being 61 years, . . . his expectancy is 13.5 years"? It is not perceived wherein the instruction here challenged differs from the one held to be erroneous in Hubbard v. R. R.,
In the instant case, the court made definitive the age of the deceased, as well as his expectancy, and thus expressed an opinion as to the sufficiency of the proof of both facts. This runs counter to C. S., 564, which prohibits the judge from expressing any opinion as to "whether a fact is fully or sufficiently proven." Cogdill v. Hardwood Co.,
Third: Is there error in the instruction given in response to a request from the jury, that Dr. Sebastian "had a right to assume that any person operating a motor vehicle on Benbow Road would come to a stop before entering Washington Avenue"?
In the circumstances of the case, we are constrained to think that this instruction may have misled the jury in its consideration of the second issue.
It is true, there are expressions in a number of cases seemingly in support of the charge, notably Hancock v. Wilson,
Notwithstanding Dr. Sebastian's right to expect compliance with the law on the part of the driver of defendant's truck, Quinn v. R. R., ante, 48, still this did not lessen his own obligation to conform to the rule of the reasonably prudent man, which was still required of him. Meacham v. R. R.,supra; Powers v. Sternberg, supra.
The case is an important one. Both sides are greatly interested in the result. A painstaking investigation of the record leaves us with the impression that the above instructions, assigned as errors, weighed too heavily against the defendant.
New trial.
