Ervin v. Cannon Mills Co.
Ervin v. Cannon Mills Co.
Opinion of the Court
Tbe only assignment of error brought forward in defendants’ appeal is tbe denial of tbeir motion for judgment of nonsuit.
Tbe determination of tbis question requires consideration of tbe evidence offered in accord witb tbe rule tbat it be viewed in tbe light most favorable for tbe plaintiff, and tbat be be given the benefit of every reasonable inference to be drawn therefrom. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757. On tbis motion not only will tbe evidence offered by plaintiff be considered, but also tbat offered by defendants which is favorable to tbe plaintiff, or which may be used to clarify and explain plaintiff’s evidence. Harrison v. R. R., 194 N.C. 656, 140 S.E. 598; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398. All tbe facts in evidence which tend to support plaintiff’s cause of action are assumed to be true. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307.
Tbe evidence offered tended to show tbat on tbe morning of 4 October, 1946, about 10 a.m. tbe truck of defendant Mills Company was being driven by its employee, defendant Allen, in tbe regular course of bis employment, westward along McGill Street in tbe City of Concord. Tbe street was paved, 30 feet wide, straight and practically level, witb slight down grade westward. Tbe street crossed tbe main line of Southern Railway and a spur track, and then Bruton Street, and 40 or 50 feet farther, on tbe south side of McGill Street, and to tbe truck driver’s left, was tbe entrance into tbe plant of tbe defendant Mills Company, into which defendant Allen intended to drive tbe truck. Tbe day was clear and tbe pavement dry. Proceeding along tbe street in tbe same direction behind tbe truck was tbe plaintiff’s intestate riding a motorcycle. Tbe truck was being driven at 20 or 25 miles per hour and was slowed down to make a left turn across the street. Tbe defendant Allen on bis examination said be gave tbe left turn signal, extending bis band and arm out of tbe truck cab window, and then “angled” across tbe street toward tbe entrance to tbe driveway, so tbat tbe distance across instead of being 15 feet was 25 or 30 feet, and tbat after giving tbe signal for left turn as soon as be began to turn be withdrew, bis band in order to bold tbe wheel of tbe truck witb both bands to make tbe turn. He said, “When I got
Tbe statute prescribes that tbe driver of a motor vehicle upon a highway “before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, . . . and when tbe operation of any other vehicle may be affected by such movement shall give a signal as required in this section plainly visible to tbe driver of such other vehicle. . . . Left Turn — band and arm horizontal, forefinger pointing. All signals to be given from left side of vehicle during last fifty feet traveled.” G.S. 20-154.
It is also provided by statute that at an intersection tbe driver of a vehicle “intending to turn to tbe left shall approach such intersection in tbe lane for the traffic to tbe right of and nearest to tbe center of tbe highway, and in turning shall pass beyond tbe center of tbe intersection, passing as closely as practicable to tbe right thereof before turning such vehicle to tbe left.” G.S. 20-153. Banks v. Shepard, 230 N.C. 86, 52 S.E. 2d 215; Ward v. Bowles, 228 N.C. 273, 45 S.E. 2d 354. Yiolation of a public statute regulating the operation of motor vehicles on tbe highway is a breach of legal duty and constitutes negligence, but it does not afford ground for action unless it be the proximate cause of resultant injury. Holland v. Strader, 216 N.C. 436, 5 S.E. 2d 311.
But on the motion for judgment of nonsuit the plaintiff is entitled to a favorable consideration of the evidence in another aspect. We do not regard the requirement in G.S. 20-154, that a prescribed hand signal be' given of intention to make a left turn in traffic, as constituting in all cases full compliance with the mandate also expressed in this statute that before turning from a direct line the driver shall first see that such movement can be made in safety, nor do we think the performance of this mechanical act alone relieves the driver of the common law duty to exercise due care in other respects.
Under the allegations and testimony here the obligation rested upon the defendants in the operation of their motor truck upon the streets of the City of Concord to exercise due care not to injure others rightfully using the street by conduct or omission the injurious consequences of which under the circumstances they could reasonably have foreseen and avoided. Failure to perform a duty, whether required by statute or imposed by the circumstances in which the parties are placed, becomes actionable when it is shown to be the proximate cause of injury.
Here the evidence shows the intestate’s motorcycle was proceeding in the same direction as the truck, following behind. The defendants’ truck was equipped with an outside rear view mirror. A glance at this would have revealed the presence of the following vehicle and admonished the driver to exercise care to see that adequate warning of his intention to turn was given, and that the movement of slowing down to 10 or 15 miles
Considering a similar statute, the Court of Civil Appeals of Texas, in Theater Corp. v. Rehmeyer, 115 S.W. 2d 985, used this language: “This duty is separate from tbe duty prescribed by tbe words immediately following, which is to give a ‘plainly visible or audible’ signal to tbe driver of any car tbe movement of which might be affected by such change of course. Obviously tbe signal would be futile if tbe movement could not be made in safety; and, therefore, there is a complete failure of duty upon the part of tbe driver of tbe turning car, if be does not first use reasonable care to see that tbe turn may be made in safety.” In Blash-field, sec. 703, we find tbe principle stated concisely: “Tbe giving of tbe statutory signals will not necessarily relieve a motorist from tbe duty of giving other signals. In other words, such statutes call for tbe minimum of care and not tbe maximum.” From Huddy Automobile Law 3-4, sec. 52, we quote: “Tbe driver of an automobile may be required to give, not only tbe statutory signals, but also other signals, or to slacken speed or take other steps to avoid a collision, if tbe surrounding circumstances and conditions require it. Tbe giving of the statutory signals is tbe least tbe law requires.”
The defendants in their brief base their argument for reversal of the ruling below solely on the ground that there was no evidence of negligence on the part of the defendants. The question of the contributory negligence of plaintiff’s intestate is not there presented. However, we have considered the evidence in the record also as it relates to this phase of the case. There was no evidence as to the speed of the motorcycle ridden by plaintiff’s intestate. One witness saw him as he stopped at the railroad crossing and then proceeded on his way in the direction of the place of collision 376 feet away, and saw nothing unusual in the manner or speed with which the motorcycle was being operated. Defendant Allen said no signal was given by the rider of the motorcycle, but as this was in a business district of the City of Concord the requirement that the driver of the following vehicle shall sound his horn before attempting to pass (G.S. 20-149) does not apply. Nor does it appear that the rider of the motorcycle in the first instance was attempting to pass until the truck had slowed down and began turning to the left, as the marks on the pavement would seem to indicate that at that point he turned to his left, apparently to avoid the truck, applied his brakes and traversed a distance of 30 feet before colliding with the truck, which was also turning to the left.
In any event, the question of proximate cause was one for the jury. What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of the attendant circumstances. In the language of Justice Barnhill in Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740, “It is only when the facts are all. admitted and only one inference may be drawn from them that the Court will declare whether an act was the proximate cause of the injury or not. But this is rarely the ease.” Nichols v. Goldston, 228 N.C. 514, 46 S.E. 2d 320; Morris v. Transportation Co., 208 N.C. 807, 182 S.E. 487. We
The decision in Stovall v. Ragland, 211 N.C. 536, 190 S.E. 899, cited by defendants, is not controlling on the facts of this case: There the plaintiff, driver, looked both ways, front and rear, and seeing no vehicle approaching, the road being straight for 500 feet, turned to his left without hand signal, and was entering his driveway when struck by defendant’s automobile traveling rapidly. It was held that plaintiff having looked carefully and observed no vehicle approaching was not required under the circumstances to give the signal prescribed by the statute, and nonsuit was reversed.
A careful, analysis of the evidence in the record in the case at bar leads to the conclusion that considering it in the light most favorable for the plaintiff and giving him the benefit of every reasonable inference therefrom it was sufficient to warrant submission to the jury, and that the motion for judgment of nonsuit was properly denied.
As the judge’s charge was not sent up, it is presumed that the pertinent principles of law applicable to the facts of this ease were fully and correctly stated to the jury.
In the trial we find
No error.
Reference
- Full Case Name
- PAUL R. ERVIN, Administrator of the Estate of MARION LIPE v. CANNON MILLS COMPANY and FRED ALLEN
- Cited By
- 1 case
- Status
- Published