Sloan v. Glenn

245 N.C. 55 | N.C. | 1956

Bobbitt, J.

The evidence was sufficient, when considered in the light most favorable to plaintiff, to require submission of the case to the jury. Moreover, the evidence, when so considered, did not warrant the special peremptory instruction requested by defendants, relating to the contributory negligence issue. Hence, the assignments of error directed to the denial of defendants’ motion for judgment of nonsuit and to the refusal of the court to give the peremptory instruction requested by defendants are overruled. Since a new trial is awarded for reasons stated below, we refrain from discussing in detail the permissible inferences that may be drawn from the evidence presently before us. Caudle v. R. R., 242 N.C. 466, 88 S.E. 2d 138, and cases cited.

Defendants’ assignments of error, based on exceptions No. 39 and No. 43, are well taken.

Work in progress related solely to the ditchdigging, pipe-laying and backfilling operations. No person in this immediate area or within the 900 feet between the “ONE-Way Road” signs undertook to direct traffic.

Admittedly, Lewis attempted to pass Sloan.

A witness for plaintiff testified: “Traffic there was going east and west all the time. Vehicles would meet and pass each other. At times when this work was in progress they would have to stop, but the traffic was moving. There was plenty of room for traffic to meet and pass each other, except immediately up near the machines, where they were working.”

When Lewis started to pass, Sloan was proceeding westwardly in his right (north) lane. He was not then engaged in backfilling the ditch.

Lewis testified, in substance, as follows: No traffic was behind him or meeting him. Pie blew his horn as he approached the backfiller tractor. When he did so, Sloan, who was seated on the backfiller tractor and in plain view, turned his head and looked back at Lewis. When the vehicles were 50-75 feet apart, Sloan pulled over to his right as if he was going to pull out on the right (north) shoulder, the right wheels of the backfiller tractor going 2-2% feet off the right (north) edge of the pavement. Then he (Lewis), in attempting to pass, began to pull out to his left, blew his horn again and “just eased up on him.” At that time, Sloan suddenly cut across to his left in the path of the tractor-tanker. He (Lewis), in an effort to avoid a collision, then cut farther to his left; and the collision occurred at or near the left (south) edge of the pavement. Sloan gave no signal and did not otherwise indicate that he intended to make a left turn.

Statutory limitations on the privilege of overtaking and passing another vehicle proceeding in the same direction are prescribed by G.S. 20-150. No statutory provision prescribes the legal effect to be given the signs placed on or near the highway by Fox. Under the circumstances disclosed by the evidence, the signs warned motorists that they were approaching an area involving special hazards.

The presence of the warning signs, the ditchdigger, the dirt piled along the highway, and the backfiller tractor, were circumstances tending to put Lewis on notice that he was approaching and had entered a zone of special hazard; and these circumstances were for consideration by the jury in determining whether Lewis, in pulling out to his left in an attempt to pass the backfiller tractor, failed to use due care, i.e., care commensurate with such circumstances. Too, they were for consideration by the jury in determining whether Sloan was contributorily negligent. Kellogg v. Thomas, 244 N.C. 722, 94 S.E. 2d 903. But the instructions to the effect that the mere fact that Lewis attempted to pass Sloan constituted negligence as a matter of law were not warranted by the evidence. These instructions, when related to the evidence, were tantamount to a peremptory instruction on the negligence issue. Since such erroneous instructions were obviously prejudicial, defendants are entitled to a new trial.

Questions posed by other assignments of error may not arise when the cause is tried again.

New trial.

JOHNSON, J., not sitting.