Todd v. Shipman

12 N.C. App. 650 | N.C. Ct. App. | 1971

BRITT, Judge.

The question presented by plaintiff on appeal is whether the court erred in instructing the jury on G.S. 20-155 (b) relative to right-of-way at intersections and in failing to instruct the jury on G.S. 20-158 (a) relative to stop signs at intersecting highways. We think the court was correct.

G.S. 20-158(a) provides: “The State Highway Commission, with reference to State highways, and local authorities, with reference to highways under their jurisdiction, are hereby authorized to designate main traveled or through highways by erecting at the entrance thereto from intersecting highways signs notifying drivers of vehicles' to come to 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 and yield the right-of-way to vehicles operating on the designated main traveled or through highway and approaching said intersection. ...”

The portion of G.S. 20-155 pertinent to this case provides: “ (b) The driver of a vehicle approaching but not having entered an intersection and/or junction, shall yield the right-of-way to a vehicle already within such intersection and/or junction whether the vehicle in the junction is proceeding straight ahead or turning in either direction. ...”

At first glance G.S. 20-155 (b) would seem inapplicable in this case since the intersection was controlled by stop signs and there are cases holding that where one street, because of a stop sign, automatic signal or other device, is favored over another at an intersection G.S. 20-155 is not applicable. White v. Phelps, 260 N.C. 445, 132 S.E. 2d 902 (1963); Jordan v. Blackwelder, 250 N.C. 189, 108 S.E. 2d 429 (1959). However, under the particular facts of this case the presence of the stop sign is not relevant and the law on that point is not pertinent, thus G.S. 20-155 (b) is controlling.

A driver along a servient street is required, in compliance with G.S. 20-158, to bring his vehicle to a stop in obedience to a stop sign lawfully erected, and not to proceed into an intersection with the dominant highway until, in the exercise of due care, he can determine that he can do so with reasonable assurance of safety. Badders v. Lassiter, 240 N.C. 413, 82 S.E. 2d 357 (1954). In the instant case the uncontradicted evidence showed that defendant driver stopped at the stop sign, yielded to traffic, and when he ascertained his movement could be made with reasonable assurance of safety, drove into the intersection across the northbound lanes; he then stopped again to see if he could proceed safely, and thereafter proceeded to the point where he stopped for a third time in the congested intersection to yield the right-of-way and see that his further movements could be made safely; while stopped the third time he was hit by plaintiff. At the time they were struck, defendants had fully complied with G.S. 20-158 (a) and G.S. 20-155 (b) was applicable.

In Farmer v. Reynolds, 4 N.C. App. 554, 561, 167 S.E. 2d 480, 485 (1969), a case involving a yield right-of-way sign, this court held that, “[w]here the driver on the servient street is already in the intersection before the vehicle approaching on the dominant street is near enough the intersection to constitute an immediate hazard, the driver on the servient street has the right-of-way.”

After defendant driver complied with the purpose and the letter of G.S. 20-158 (a), it became moot. In fact, it would have been error to charge on G.S. 20-158 (a) since “[i]t is established by our decisions that an instruction about a material matter not based on sufficient evidence is erroneous. . . . And it is an established rule of trial procedure with us that an abstract proposition of law not pointing to the facts of the case at hand and not pertinent thereto should not be given to the jury.” Childress v. Motor Lines, 235 N.C. 522, 530, 70 S.E. 2d 558, 564 (1952).

No error.

Judges Bkock and Vaughn concur.