HENDERSON
v.
HENDERSON.
No. 102.
Supreme Court of North Carolina.
February 24, 1954.*384 E. L. Loftin, Asheville, for plaintiff-appellant.
Harkins, Van Winkle, Walton & Buck, Asheville, for defendant-appellee.
*385 BOBBITT, Justice.
In testing the sufficiency of the plaintiff's evidence to require submission of the issue of negligence to the jury, certain well-established propositions must be kept in mind.
The general law as to what constitutes actionable negligence is thus stated by Justice (later Chief Justice) Hoke: "To establish actionable negligence, the question of contributory negligence being out of the case, the plaintiff is required to show by the greater weight of the testimony, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiffs under the circumstances in which he was placedproper care being that degree of care which a prudent man should use under like circumstances and charged with like duty; and, second, that such negligent breach of duty was the proximate cause of the injurya cause that produced the result in continuous sequence, and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Shearman and Red. on Neg. §§ 25-28; Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885; Raiford v. Wilmington & W. R. Co., 130 N.C. 597, 41 S.E. 806; Pittsburgh Southern Ry. Co. v. Taylor, 104 Pa. 306; McGowan v. Chicago & N. W. Ry. Co., 91 Wis. 147, 64 N.W. 891." Ramsbottom v. Atlantic Coast Line R. Co., 138 N.C. 38, 39, 41, 50 S.E. 448, 449.
With further reference to proximate cause, we note that "foreseeability" is one of its requisite elements. Whitley v. Jones, 238 N.C. 332, 78 S.E.2d 147; Davis v. Carolina Power & Light Co., 238 N.C. 106, 76 S.E.2d 378.
Apart from safety statutes prescribing specific rules governing the operation of motor vehicles, a person operating a motor vehicle must exercise proper care in the way and manner of its operation, proper care being that degree of care that an ordinarily prudent person would exercise under the same or similar circumstances and when charged with like duty. Thus, he must exercise due care as to keeping a proper lookout, as to keeping his car under proper control, and generally so as to avoid collision with persons or other vehicles on the highway. Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111.
In meeting a car, proceeding in the opposite direction, where the oncoming car is not on its right side of the highway as the vehicles approach each other, ordinarily a motorist may assume that before the cars meet the driver of the approaching car will turn to his right so that the two cars may pass each other in safety; but from the time the motorist sees, or by the exercise of due care should see, that the approaching driver cannot or will not do so it is incumbent upon him then to exercise due care under the then existent conditions. Morgan v. Saunders, 236 N.C. 162, 72 S.E.2d 411, and cases therein cited.
Too, as stated by Chief Justice Devin in Morgan v. Saunders, supra [236 N.C. 162, 72 S.E.2d 413], "Furthermore, when confronted by the sudden emergency of the approach of another automobile negligently operated, the driver of an automobile who is in no respect at fault, is not usually held to the same degree of deliberation and circumspection as under ordinary conditions. Ingle v. Cassady, 208 N.C. 497, 181 S.E. 562."
Tested in relation to these well established propositions, we agree with the trial judge in his ruling that the plaintiff's evidence fails to show actionable negligence on the part of the defendant.
The defendant's truck was always on its proper side of the highway, the collision occurring midway between the center line and the east edge of the paved highway. The defendant's truck was traveling at a moderate speed, estimated to be from 20 to 25 miles per hour, and at all times the defendant had the truck under control.
When the Hyatt car came into view, some 60, 75 or 100 yards ahead, rounding *386 the curve, it was on its left side of the paved highway, swerving and wobbling, traveling at a speed of from 50 to 60 miles per hour. Hyatt turned to his right, out of the defendant's lane of travel. Thereafter, he got off the paved portion of the highway into a ditch on his right side, traveled "just a little ways" in the ditch, and then within 5 to 10 feet of the defendant's truck Hyatt jerked his car out of the ditch and caused it to cut across the paved highway and crash into the defendant's truck. At that time the defendant's truck was almost stopped, barely moving.
Viewing the circumstances in the light most favorable to the plaintiff, as required in passing upon a motion for judgment of involuntary nonsuit, the defendant was confronted suddenly by an emergency caused solely by the gross negligence of Hyatt. If the vehicles were 100 yards apart, as the plaintiff testified, when the Hyatt car came into view, at a speed of 60 miles per hour the Hyatt car would travel 100 yards in slightly more than 3.4 seconds; and at a speed of 50 miles per hour it would travel 100 yards in slightly more than 4 seconds. Automobile Trials, Applied Law, Clevenger, Chart on page 102. This calculation leaves out of consideration the distance traveled by the defendant's truck, this distance reducing to that extent the 100 yards used in the calculation and the time period involved. The calculation is significant only as it emphasizes the fact that the emergency arose suddenly and less than four seconds elapsed from the time the Hyatt car came into view until the collision occurred.
The evidence is silent as to certain of the facts relating to Hyatt's movements within this distance of less than 100 yards. Did he get on his right side of the highway immediately? How far did he travel on his right side of the highway before going into the ditch? How far did he travel in the ditch? What were the physical facts as to the nature of this ditch?
To hold the defendant accountable for his failure to anticipate that Hyatt would jerk his car out of the ditch just when he was opposite the defendant's truck would require omniscience rather than reasonable foreseeability. The law does not so require. Lee v. Carolina Upholstery Co., 227 N.C. 88, 90, 40 S.E.2d 688, 689.
Moreover, the evidence as to the defendant's declarations of remorse, to the effect that if he had only stopped or pulled out on the shoulder the collision would not have occurred, throws no light on what actually occurred at and preceding the time of the collision. The presence of his truck, operated in a lawful manner, under control, on its right and proper side of the highway must be regarded as "a circumstance of the accident and not its proximate cause." Lee v. Carolina Upholstery Co., supra; Powers v. S. Sternberg & Co., 213 N.C. 41, 195 S.E. 88. In retrospect, the defendant rightly concluded that had his truck not been where it was when Hyatt cut across the road the collision would not have occurred. But negligence, as stated frankly in plaintiff's brief, involves more than being at a particular place at a particular time. Even by the use of hindsight, ("Hindsight is usually better than foresight.") it is altogether a matter of surmise or conjecture as to what would have happened had the defendant stopped in the highway when the Hyatt car first came into sight or had pulled off on the shoulder and stopped. Pack v. Auman, 220 N.C. 704, 707, 18 S.E.2d 247; Tysinger v. Coble Dairy Products, 225 N.C. 717, 722, 36 S.E.2d 246. Hindsight does indicate, as events developed, that had he speeded up his truck while Hyatt was on his right side of the highway or in the ditch the defendant would have passed in safety. Indeed, if he had traveled only a few feet farther he would have passed in safety. But at the time the questions as to whether, when or where Hyatt would get into the ditch or undertake to pull out of it could not be answered; and his failure to anticipate the unforeseeable when confronted by a sudden emergency caused by no fault of his own cannot be deemed a basis of actionable negligence. Patterson v. Ritchie, 202 N.C. 725, 164 S.E. 117; Ingle v. Cassady, supra; Morgan v *387 Saunders, supra. For in such case, as stated by Stacy, C. J., in Ingle v. Cassady, supra [208 N.C. 497, 181 S.E. 563], "One who is required to act in an emergency is not held by the law to the wisest choice of conduct, but only to such choice as a person of ordinary care and prudence, similarly situated, would have made." (Emphasis supplied.) The plaintiff's evidence does not show a failure of the defendant to pass this test.
The collision, with its regrettable and serious consequences to the plaintiff, must be deemed upon the evidence before us to have been caused solely by the gross negligence of Hyatt. Accordingly, the judgment of involuntary nonsuit is
Affirmed.
PARKER, J., dissents.