Dohonov GALLOWAY
v.
William E. HARTMAN.
No. 38.
Supreme Court of North Carolina.
September 20, 1967.*730 Potts & Hudson, Brevard, and Van Winkle, Walton, Buck & Wall, Asheville, for plaintiff.
Uzzell & DuMont, Asheville, for defendant.
BRANCH, Justice.
Appellant contends the court erred in allowing defendant's motion for nonsuit, in that there was sufficient evidence of actionable negligence on the part of defendant to carry the case to the jury, and in that plaintiff's evidence, taken in the light most favorable to her, did not establish that plaintiff was guilty of contributory negligence as a matter of law.
*731 In order for plaintiff to survive the motion for nonsuit, she must first offer sufficient evidence, when taken in the light most favorable to her, and when she is given the benefit of all permissible inferences to be drawn from it, to support all essential elements of actionable negligence. McFalls v. Smith, 249 N.C. 123, 105 S.E.2d 297; Lake v. Harris Express, Inc., 249 N.C. 410, 106 S.E.2d 518; Barefoot v. Joyner, 270 N.C. 388, 154 S.E.2d 543.
"Actionable negligence embraces negligence and proximate cause. The elements of each have been clearly defined. Ramsbottom v. Atlantic Coast Line R. R. Co., 138 N.C. 38, 41, 50 S.E. 448; Hall v. Coble Dairies, 234 N.C. 206, 67 S.E.2d 63, 29 A.L.R. 2d 682. There is no controversy as to these well established rules." Williamson v. Clay, 243 N.C. 337, 90 S.E.2d 727.
The collision involved in this appeal occurred at an intersection where the traffic moving in defendant's direction was controlled by electrically operated signals. It is admitted in the pleadings that this traffic signal was erected and maintained by the City of Hendersonville.
Municipalities have plenary power to regulate traffic at intersections. Upchurch v. Hudson Funeral Home, 263 N.C. 560, 140 S.E.2d 17. This Court held in the case of Kelly v. Ashburn, 256 N.C. 338, 123 S.E.2d 775, that stop signs erected by the State Highway Commission and local authorities on an intersecting highway or street pursuant to G.S. § 20-156(a) is a method of giving the public notice that traffic on one is favored over the other, and that a motorist facing a stop sign must yield. In that case the Court further stated: "Stop signs at intersections are in such general use, and their function so well known, that a motorist, in the absence of notice to the contrary, may presume that they were erected by lawful authority." While that case relates to a stop sign, rather than an electrically controlled signal, it would seem that the reasoning applied in that case would likewise be applicable to the present state of facts. Moreover, this Court considered the effect and meaning of electrically controlled traffic signals in the case of White v. Cothran, 260 N.C. 510, 133 S.E.2d 132, where Denny, C. J., speaking for the Court, said:
"The meaning and force to be given to electrically operated traffic control signals, in the absence of a statute or ordinance, `is that meaning which a reasonably prudent operator of an automobile should and would understand and apply. Queen City Coach Co. v. Fultz, 246 N.C. 523, 98 S.E.2d 860. Traffic signals of the kind here described are in such general use that it is, we think, well known by motor vehicle operators that a red traffic light is a warning that the highway is closed in order to permit those using the intersecting highway safe passage through the intersection. Hence, prudence dictates that he should stop.' * * *."
"When a motorist approaches an electrically controlled signal at an intersection of streets or highways, he is under the legal duty to maintain a proper lookout and to keep his motor vehicle under reasonable control in order that he may stop before entering the intersection if the green light changes to yellow or red before he actually enters the intersection."
We hold that there is sufficient evidence here to allow the jury to find that defendant drove his automobile through a red traffic signal so as to endanger persons and property passing on the intersecting highway, or that he failed to keep a proper lookout for persons or vehicles traveling on the public highway, thus causing the collision and plaintiff's personal injuries and property damage. Plaintiff's allegations and evidence were sufficient to allow the court to submit the issue of negligence to the jury.
*732 The remaining and decisive question is whether plaintiff's evidence established that she was guilty of contributory negligence as a matter of law.
Nonsuit on the ground of contributory negligence should be allowed only when plaintiff's evidence, taken in the light most favorable to him, so clearly establishes the defense that no other reasonable inference or conclusion can be drawn therefrom. Waters v. Harris, 250 N.C. 701, 110 S.E.2d 283; Hood v. Queen City Coach Co., 249 N.C. 534, 107 S.E.2d 154. Further, nonsuit on the ground of contributory negligence should be denied if diverse inferences upon the question are permissible from plaintiff's proof. Wooten v. Russell, 255 N.C. 699, 122 S.E.2d 603.
Defendant contends that when plaintiff left the A and W Drive-in and entered the intersection, she violated the provisions of G.S. § 20-156(a), which provides: "The driver of a vehicle entering a public highway from a private road or drive shall yield the right-of-way to all vehicles approaching on such public highway.'
G.S. § 20-38(23) defines a private road or driveway to be: "Every road or driveway not open to the use of the public as a matter of right for the purpose of vehicular traffic."
The record is meager as to ownership, maintenance, use and other facts determinative of the public or private nature of the driveway leading from A and W Drivein into the intersection. However, conceding, arguendo, that plaintiff entered the intersection from a private driveway, so that she had the duty to yield the right-of-way to all vehicles on U.S. Highway 25 at such time when her precaution would be effective, Garner v. Pittman, 237 N.C. 328, 75 S.E.2d 111, nevertheless, her duty to yield the right-of-way must be considered in light of her statement that when she drove into the intersection the traffic signals controlling southbound traffic were red.
In the case of Currin v. Williams, 248 N.C. 32, 102 S.E.2d 455, the evidence tended to show that the plaintiff entered an intersection while the traffic control signal facing him was green, and that the front of his car struck the right side of defendant's car, which entered the intersection from plaintiff's left while the traffic control signal facing him was red. The Court, speaking through Bobbitt, J., stated:
"In Wright v. Pegram, supra [244 N.C. 45, 92 S.E.2d 419] Higgins, J., states the rule as established by prior decisions as follows: `* * * a motorist facing a green light as he approaches and enters an intersection is under the continuing obligation to maintain a proper lookout, to keep his vehicle under reasonable control, and to operate it at such speed and in such manner as not to endanger or be likely to endanger others upon the highway. (Citation.) Nevertheless, in the absence of anything which gives or should give him notice to the contrary, a motorist has the right to assume and to act on the assumption that another motorist will observe the rules of the road and stop in obedience to a traffic signal.' Cox v. Hennis Freight Lines, supra [236 N.C. 72, 72 S.E.2d 25]; Hyder v. Asheville Storage Battery Company, Inc., 242 N.C. 553, 89 S.E.2d 124; Troxler v. Central Motor Lines, supra [240 N.C. 420, 82 S.E.2d 342].
"But the mere fact that plaintiff failed to look to observe traffic conditions on Western Avenue east of the intersection is insufficient to establish that plaintiff was contributorily negligent as a matter of law. Whether such failure to look was a proximate cause of the collision depended upon whether, if he had looked, what he would or should have seen was sufficient to put him on notice, at a time when plaintiff could by the exercise of due care have avoided the collision, that defendant would not stop in obedience to the red light. Defendant was chargeable with notice of what he would have seen had he exercised due care to keep a *733 proper lookout. Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683; Smith v. Buie, 243 N.C. 209, 90 S.E.2d 514."
In light of the evidence presented here, we cannot say that the only reasonable inference that can be drawn therefrom is that the plaintiff entered the intersection without ascertaining that it could be done in safety, or that the circumstances were such that the plaintiff should have been put on notice that defendant would not stop in obedience to the traffic signal, or that plaintiff failed to keep a proper lookout and act as a reasonably prudent person would under the circumstances.
Since the evidence permits diverse inferences, the issue of contributory negligence should have been submitted to the jury.
Reversed.