1 N.C. App. 188 | N.C. Ct. App. | 1968
The automobile collision between the Chevrolet automobile owned by mother and driven by son and the Oldsmobile automobile owned and driven by Combs occurred on Sunday, 17 April 1966, at approximately 12:45 p.m. at the right-angle intersection of Unaka Avenue and Lanier Avenue in the City of Charlotte. The weather was clear.
Lanier Avenue is for two-way traffic and is 25 to 30 feet wide. It runs in a generally northerly and southerly direction and is the dominant street.
" Unaka Avenue is for two-way traffic and is 20 to 25 feet wide. It runs in a generally easterly and westerly direction and has a “stop” sign controlling vehicular traffic before entering Lanier Avenue and it is the servient street.
The speed limit was 35 miles per hour.
The Chevrolet automobile driven by son was proceeding in a southerly direction' along Lanier Avenue.
The two vehicles collided in the intersection causing property damage to each vehicle and personal injuries to son and Combs.
Since both cases will again be tried, we will omit a detailed discussion of the evidence, except as deemed essential, so as not to prejudice either party on the further hearing.
The evidence for the plaintiff would permit but not require the jury to find:
1. From a point at the northeast corner of the intersection one could see an automobile traveling south on Lanier Avenue for a distance of 350 to 400 feet north of the intersection.
2. The Chevrolet was being driven south on Lanier Avenue, the dominant street, at a lawful speed not in excess of 35 miles per hour.
3. A reasonably prudent person, keeping a proper lookout, could see an automobile traveling south on Lanier Avenue, from a stopped position on Unaka Avenue, the servient street, in time to yield the right of way and not proceed out into the intersection and collide with the automobile on the dominant street.
4. The defendant, Combs, did not see the Chevrolet prior to the collision and, therefore, was not keeping a proper lookout or else failed to stop and look for traffic on the dominant street.
5. Son, driving the Chevrolet on the dominant street at a lawful speed, had the right of way and the right to expect other motorists on the servient street would yield to him. Son had the right to act upon this assumption, even to the last minute. Peeden v. Tait, 254 N.C. 489, 119 S.E. 2d 450.
6. Defendant, Combs, did not yield the right of way to the Chevrolet and instead precipitated a collision in the intersection.
7. Whether son was keeping a reasonably careful lookout to avoid danger is ordinarily an issue of fact, and hence not contributory negligence as a matter of law. Peeden v. Tait, supra.
We are of the opinion and hold that the evidence for the plaintiffs, when taken in the light most favorable to them, requires submission to the jury to determine the facts and it was error to sustain the motion for judgment of nonsuit.
The evidence for the defendant, Combs, on his counterclaims and cross-action would permit but would not require the jury to find:
1. Combs drove his Oldsmobile west on Unaka Avenue and,
2. After stopping Combs looked to his right or north on Lanier Avenue and could see 150 to 200 feet, and then he looked to his left or south on Lanier Avenue. He saw nothing moving on Lanier Avenue and proceeded to drive into the intersection at a speed of three to five miles an hour and was attempting to cross.
3. When the front of the Oldsmobile reached the west side of Lanier Avenue, it was struck by the Chevrolet coming from the north or right and going south on Lanier Avenue.
4. The Chevrolet came down a hill on Lanier Avenue going south at a speed of 45 or 50 miles an hour and the driver made no effort to decrease its speed before striking the Oldsmobile which had entered the intersection and was in process of crossing.
5. At the time Combs drove the Oldsmobile into the intersection a reasonably prudent person could have assumed no vehicular traffic, on Lanier Avenue, complying with lawful speed regulations would interfere with his crossing the intersection in safety.
6. No collision would have occurred if the driver of the Chevrolet had been operating it at a lawful speed not in excess of 35 miles per hour.
7. No collision would have occurred if the driver of- the Chevrolet had been keeping a reasonably careful lookout and had slowed down for the vehicle in the intersection in process of completing a crossing. Blalock v. Hart, 239 N.C. 475, 80 S.E. 2d 373.
We are of the opinion and hold that the evidence for defendant, Combs, when taken in the light most favorable to him, requires submission to the jury to determine the facts and it was error to sustain the motion for judgment of nonsuit.
For reasons stated the judgment rendered by the trial tribunal should be reversed, and a new trial had as to all issues.
