BOBBITT
v.
HAYNES et al.
No. 745.
Supreme Court of North Carolina.
February 3, 1950.*363 Fuller, Reade, Umstead & Fuller, Durham, for defendant-appellant.
R. M. Gantt, Durham, for plaintiff-appellee.
WINBORNE, Justice.
The sole question presented for consideration on this appeal is predicated upon assignments of error based on exceptions to the refusal of the court below to allow defendant's motion for judgment as of nonsuit first entered at the close of plaintiff's evidence, and renewed at the close of all the evidence in the case.
It is the contention of defendant that the evidence introduced by plaintiff, and shown in the record, taken in the light most favorable to him, and giving to him the benefit of every reasonable intendment and inference to be drawn therefrom, shows him to be guilty of contributory negligence as a matter of law,and, hence, that judgment as of nonsuit on this ground should have been granted. However, when tested by pertinent statutes of this State, and decisions of this Court, the evidence is not so clear in meaning as to warrant such holding.
In this connection it is appropriate to consider the legal rights of the respective parties at the time of and under the circumstances of the collision. It is noted that while there is allegation in the complaint that U. S. Highway No. 70, immediately east of, as well as within the corporate limits, "runs through a very thickly populated section", it is not alleged that the approach to the scene of the collision along the highway from the east was in a "business district" as defined in Motor Vehicle *364 Act, G.S. § 20-38(a), or in a "residential district" as defined in Section G.S. § 20-38(w) 1 of said act. Thus the speed restrictions prescribed by statute, G.S. § 20-141, as rewritten in Part IV, Section 17 of Chapter 1067 of 1947 Session Laws of North Carolina, effective from and after July 1, 1947, prior to the date of the collision in question, are pertinent to be considered in judging the conduct of plaintiff. It is provided that "(a) No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing"; and that "(b) Except as otherwise provided in this Chapter, it shall be unlawful to operate a vehicle in excess of" a speed of fifty five miles per hour in places other than those in business and residential districts, for passenger cars, etc.
And it is provided in subsection (c) that the fact that the speed of a vehicle is lower than the foregoing limit shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty to use due care.
Moreover, it is provided in subsection (d) of this statute that whenever the state highway and public works commission shall determine upon the basis of an engineering and traffic investigation that any speed hereinbefore set forth be greater than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, said commission shall determine and declare a reasonable and safe speed limit thereof, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway. And in subsection (f) the local authorities within their respective jurisdictions are given like powers.
Furthermore, it is a general rule of law, even in the absence of statutory requirements, that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. In the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout, so as to avoid collision with persons and vehicles upon the highways. This duty requires that the operator be reasonably vigilant, and that he must anticipate and expect the presence of others. And, as between operators so using the highway, the duty of care is mutual, and each may assume that others on the highway will comply with this obligation. 5 Am.Jur. Automobiles, Sections 165, 166, 167; Murray v. Atlantic Coast Line R. Co., 218 N.C. 392, 11 S.E.2d 326; Reeves v. Staley, 220 N.C. 573, 18 S.E.2d 239; Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565.
And it is not contended on this appeal that there is insufficient evidence to support a finding by the jury that defendant was negligent in the manner alleged.
Now, as to the alleged contributory negligence of plaintiff: While it is averred in the answer that there was a "Stop" sign on Liberty Street warning vehicles entering Highway No. 70 from Liberty Street to come to a full stop before doing so, there is neither allegation nor proof that such sign was so placed by, or with the sanction of local authorities. Who then had the right of way?
The statute G.S. § 20-155(a) provides that "When two vehicles approach or enter an intersection * * * at approximately the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right except as otherwise provided in G.S. 20-156." And G.S. § 20-156(a) provides that "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." Hence, as the plaintiff in the present case was traveling on a public street, the provisions of G.S. § 20-156(a) are inapplicable. Compare Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337. And the evidence *365 most favorable to plaintiff tends to show that his automobile was in the intersection when defendant's automobile was 50 to 75 steps away. So, if the highway and the street were of equal dignity, the provisions of G.S. § 20-155(a) would not apply as the two automobiles were not approaching or entering the intersection at the same time.
On the other hand, it is provided by statute, G.S. § 20-158(a) that "the state highway and public works 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 this statute further provides that "no failure so to stop, however, shall be considered contributory negligence per se in any action at law for injury to person or property; but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff in such action was guilty of contributory negligence." See Reeves v. Staley, supra.
In the light of the provision of this statute, G.S. § 20-158(a) if the evidence offered as to the city limits sign, with speed limit on it, on the highway, and the "Stop" sign on Liberty Street be sufficient to justify the inference that they were erected with legal authority within the purview of this statute so as to designate U. S. Highway No. 70 as the main or through highway, or to limit the speed of motor vehicles traveling on the highway approaching the intersection in question, all the evidence tends to show that plaintiff brought his automobile to a full stop before entering or attempting to cross said highway. And in entering and attempting to cross, he had the right to take into consideration the speed limit shown on the city limit sign. For "one is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary, a person is entitled to assume, and to act upon the assumption, that others will exercise ordinary care for their own safety". 45 C.J. 705; Shirley v. Ayers, 201 N.C. 51, 158 S.E. 840. See also Murray v. Atlantic Coast Line R. Co., supra; Reeves v. Staley, supra; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211; Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246.
Indeed, the operator of a motor vehicle on a public highway may assume that other operators of motor vehicles will use reasonable care and caution commensurate with visible conditions, and that they will approach with their vehicles under reasonable control, and that they will observe and obey the rules of the road. See Hobbs v. Queen City Coach Co., supra; Shirley v. Ayers, supra, and Murray v. Atlantic Coast Line R. Co., supra, where the authorities are cited.
But if plaintiff had not so stopped, his failure so to do would not have been contributory negligence per se in this action at law for injury to property. The facts relating to such failure to stop, might under the express provisions of the statute, be considered with other facts in the case in determining whether plaintiff was guilty of contributory negligence.
Thus, plaintiff is entitled to have his conduct, in entering and undertaking to cross the highway, under the circumstances the evidence tends to show, judged in the light of the provisions of the above statutes and principles declared and applied in decisions of this Court, in determining whether he acted as a reasonably prudent man would have so acted under the same or similar circumstances, that is, with ordinary care.
And the evidence is not clear as to whether plaintiff saw defendant's automobile coming, and then undertook to cross the highway, or whether plaintiff started across, and, when in the act of crossing, saw defendant's automobile. And *366 the evidence is not clear as to whether in law the highway and the street were roads of equal dignity; or whether the highway was in law the dominant road.
In this case the facts as to these matters are determinable by the jury under appropriate instructions from the court as to the law involved.
In the judgment below, we find
No error.