Glenn CARR, by his next friend, Huey Frank Carr,
v.
Lexton O'Neil STEWART and Lessie Honeycutt Stewart.
No. 166.
Supreme Court of North Carolina.
March 2, 1960.*20 Chesnutt & Chambliss, Clinton, for plaintiff.
Butler, Butler & Lee, Clinton, for defendant.
DENNY, Justice.
In our opinion, the plaintiff's testimony when considered in the light most favorable to him is sufficient to carry the case to the jury. The issues of negligence and contributory negligence raised by the pleadings present questions to be resolved by a jury and not by the court.
In the case of State v. Hill, 233 N.C. 61, 62 S.E.2d 532, 534, Ervin, J., speaking for the Court, said:
"When the driver of a motor vehicle on the left comes to an intersection and finds no one approaching it on the other street within such distance as reasonably to indicate danger of collision, he is under no obligation to stop or wait, but may proceed to use such intersection as a matter of right. * * *
"A driver having the right of way may act upon the assumption in the absence of notice to the contrary that the other motorist will recognize his right of way and grant him a free passage over the intersection. * * *"
G.S. § 20-155, in pertinent part, reads as follows: "(a) When two vehicles approach or enter an intersection and/or junction 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 * * *. (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 * * *." Under subsection (b) of the statute the vehicle first reaching an intersection which has no stop sign or traffic signal has the right of way over a vehicle subsequently reaching it, whether the vehicle in the intersection is proceeding straight ahead or turning in either direction; and it is the duty of the driver of the vehicle not having entered the intersection to delay his progress and allow the vehicle which first entered the intersection to pass in safety. Downs v. Odom, 250 N.C. 81, 108 S.E.2d 65; Donlop v. Snyder, 234 N.C. 627, 68 S.E.2d 316; Kennedy v. Smith, 226 N.C. 514, 39 S.E.2d 380; Crone v. Fisher, 223 N.C. 635, 27 S.E.2d 642; Yellow Cab Co. of Charlotte v. Sanders, 223 N.C. 626, 27 S.E.2d 631.
In the case of Donlop v. Snyder, supra, the Court said: "Here, the defendant's argument seems to be grounded on the assumption that this evidence conclusively shows the two cars approached the intersection at approximately the same time. Such does not appear. The evidence does not give the defendant's car any fixed location. The plaintiff said he looked and did not see the defendant's car. It is simply negative evidence. While this testimony may support the inference that the two cars approached the intersection `at approximately the same time,' with equal logic it supports the inference that the defendant's car was at a point relatively remote from the intersection when the plaintiff looked. He said he could see up the street about a block. That the defendant was some considerable distance up the street when the plaintiff said he stopped and looked is supported by the physical evidence at the scene of the wreck tending to show that the defendant was driving at a high rate of speed; whereas the plaintiff said he moved through the intersection in second gear and was hit as he was emerging on the far side." [234 N.C. 627, 68 S.E.2d 320.]
*21 The plaintiff's evidence in the instant case tends to show that he entered the intersection first. Hence, in our opinion, he is entitled to have his case heard by a jury on appropriate issues, and we so hold.
The judgment of the court below is
Reversed.