Ruby QUEEN
v.
David JARRETT and Harold R. Mitchell.
No. 389.
Supreme Court of North Carolina.
January 11, 1963.*896 Deal, Hutchins & Minor, Winston-Salem, for defendant appellant Jarrett.
Jordan, Wright, Henson & Nichols and G. Marlin Evans, Greensboro, for defendant appellant Mitchell.
W. H. Steed, Thomasville, for plaintiff appellee.
BOBBITT, Justice.
The appeal of each defendant requires separate consideration.
MITCHELL'S APPEAL
Mitchell's only assignment of error is directed to the court's denial of his motions for judgment of nonsuit.
When plaintiff offered her evidence and rested, Mitchell moved for judgment of nonsuit; and, when the court refused his said motion, Mitchell excepted to the court's ruling and announced that he did not choose *897 to introduce evidence. G.S. § 1-183. He contends he did not offer evidence or otherwise waive his exception to said ruling.
Unquestionably, testimony subsequently offered by Jarrett and by plaintiff includes evidence favorable to plaintiff, Mitchell contends this evidence may not be considered, that the question as to nonsuit is whether the evidence offered by plaintiff before she (originally) rested her case was sufficient to support a finding that plaintiff was injured by his (Mitchell's) actionable negligence. As in Van Landingham v. Singer Sewing Machine Co., 207 N.C. 355, 177 S.E. 126, where a similar question was raised, we find it unnecessary on this record to pass upon Mitchell's said contention.
Mitchell contends his said motion for judgment of nonsuit should have been allowed because the evidence was insufficient to support plaintiff's allegations as to his (Mitchell's) actionable negligence.
According to plaintiff's testimony, Jarrett had been following the Mitchell truck "about a mile or half a mile," stayed "within four or five feet of it," both vehicles proceeding north in the east traffic lane at a speed of 55 miles per hour when they reached and entered the passing zone.
There is merit in Mitchell's contention that G.S. § 20-151 is not applicable to the factual situation presented by plaintiff's evidence. Dreher v. Divine, 192 N.C. 325, 135 S.E. 29, 47 A.L.R. 696. Moreover, as discussed in connection with Jarrett's appeal, according to plaintiff's allegations and testimony, the collision was proximately caused by the act of each defendant in turning from a direct line of traffic, not because Jarrett or Mitchell was driving at excessive speed. Too, while plaintiff, as set forth in the statement of facts, alleged each defendant violated the provisions of the reckless driving statute, G.S. § 20-140, she did not indicate the conduct she considered "reckless driving." In this connection, see Dunlap v. Lee, 257 N.C. 447, 126 S.E.2d 62.
Plaintiff did allege Mitchell "failed to keep a proper lookout and failed to observe the traffic conditions then and there existing upon said highway." This allegation must be considered in relation to plaintiff's basic factual allegation, namely, "as the defendant Jarrett attempted to pull around the defendant Mitchell, the defendant Mitchell also pulled his truck to the left of the center of the highway, at which time the right front of the defendant Jarrett's automobile collided with the left rear side of the defendant Mitchell's truck."
According to plaintiff's evidence, there was, within the passing zone, a line of traffic, "other traffic ahead of the pickup truck." Plaintiff testified (1) that she saw no signal given by Mitchell "for a change of lane," and (2) that "the rear bumper of the pickup truck caught the right front fender of Jarrett's car." True, plaintiff testified that Jarrett blew his horn just as he pulled out to pass the pickup truck. Moreover, the collision occurred in a zone where it might be reasonably anticipated that passing would be attempted.
The provisions of G.S. § 20-154 are pertinent to the basic factual situation alleged by plaintiff. Moreover, plaintiff's testimony, when considered in the light most favorable to her, was sufficient to support findings that Mitchell, in violation of G.S. § 20-154, turned from a direct line of travel (1) without seeing that such movement could be made in safety, and (2) without giving the required signal of his intention to do so.
True, plaintiff's allegations contain no reference to G.S. § 20-154. Nor does plaintiff allege Mitchell failed to signal his intention to turn from his direct line of travel. Even so, without reference to statutory provisions, plaintiff's allegations, as indicated above, to the effect that Mitchell, without keeping a proper lookout and without observing traffic conditions then and there existing upon the highway, drove his truck to the left of the center of the highway as Jarrett was attempting to pull around him, and the evidence in support *898 thereof, were sufficient to require submission of an issue as to Mitchell's actionable negligence and to support a jury finding in favor of plaintiff. We are of opinion, and so decide, that the evidence offered by plaintiff before she (originally) rested her case was sufficient to withstand Mitchell's motion for judgment of nonsuit.
Since Mitchell does not assign error in any other respect, the verdict and judgment, as between plaintiff and defendant Mitchell, will not be disturbed.
JARRETT'S APPEAL
The only assignments of error brought forward and discussed in Jarrett's brief relate to the court's instructions to the jury.
Jarrett excepted to and assigns as error the following portion of the court's charge:
"So, as you find from the evidence and by the greater weight thereof, the burden of proof being on the plaintiff to so satisfy you, if you find it was a thirty-five mile zone, then you will consider the maximum speed for each of the vehicles to be thirty-five; but if you fail to so find from the evidence and by the greater weight thereof, then the speed restriction will be the openroad or fifty-five miles per hour as the maximum speed."
There was uncontradicted evidence that the area in which the collision occurred was annexed to and became a part of the City of High Point early in 1961 and that Westchester Drive was "kind of a by-pass around High Point." Elsewhere in the charge, the court instructed the jury that, according to all the evidence, the place where the collision occurred was not in a business or residential district.
Preceding the quoted portion, the court, in instructing the jury, read the provisions of paragraphs (a), (b) except subsection 3 thereof, (c), and (d), of G.S. § 20-141 as set forth in G. S. Volume 1C, Recompiled 1953.
G.S. § 20-141(d) provides:
"Whenever the State Highway and Public Works Commission shall determine upon the basis of an engineering and traffic investigation that any speed herinbefore set forth is 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 thereat, which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway."
Immediately preceding the quoted portion, the court, reviewing the contentions of plaintiff and of defendants, respectively, with reference to whether the collision occurred within a 35-mile speed zone, said:
"Plaintiff insists and contends that at the time of this accident that only two signs were there leading up north in the direction of the place of the accidentthat one was some two miles or more back which said a `thirty-five mile zone,' and then another one was about one and six-tenths miles by measurement from the place of the accident, and that that was the last thirty-five mile zone sign; that there were no other speed restriction signs placed on the highway by the Highway Commission at any place between where the first sign was placed and where the second sign was placed and where the point of the accident took place. Therefore, plaintiff insists and contends that you should find that it was a thirty-five mile zone.
"The defendants on the other hand insist and contend that they were too far away from the nearest sign to designate this area as a thirty-five mile zone, but that on the date of the accident, some year ago, there was a sign in between the two, beyond the last one which was one and six-tenths miles from the place of the accident, stating Resume safe Speed' which was a highway *899 sign but which has been removed; and that neither of the signs was close enough to establish this area as a thirty-five mile zone from the signs erected by the Highway Commission."
For the reasons stated below, we think the quoted instruction is erroneous and prejudicial and that Jarrett is entitled to a new trial on account thereof.
In addition to the evidence referred to in the court's quoted review of contentions, there was other evidence as to highway (speed) signs, the location thereof and when observed. Moreover, there were conflicts in the evidence relating to such signs. Assuming, but not deciding, there was evidence which, when considered in the light most favorable to plaintiff, would support a finding that the Highway Commission had erected appropriate signs giving notice to northbound traffic that the portion of Westchester Drive in which the collision occurred was in a 35-mile speed zone, the quoted instruction is deficient in that it fails to provide the jury with any guide or standard as to what facts plaintiff was required to establish as a basis for a finding that the collision occurred within a 35-mile speed zone. Hence, the quoted instruction does not comply with the requirements of G.S. § 1-180.
There was evidence that, immediately preceding the collision, both Jarrett and Mitchell were operating their respective motor vehicles at a speed in excess of 35 miles per hour. However, if it be conceded that the collision occurred within a 35-mile speed zone, and if the collision occurred as set forth in plaintiff's allegations and evidence, it does not appear that excessive speed was a proximate cause of the collision.
It is well settled that a plaintiff must make out his case secundum allegata. His recovery, if any, must be on the cause of action alleged in the complaint. Nix v. English, 254 N.C. 414, 421, 119 S.E.2d 220, and cases cited; Howell v. Smith, 258 N.C. 150, 154, 128 S.E.2d 144.
Plaintiff testified and alleged (as we construe her complaint) that both Mitchell and Jarrett had been and were proceeding in the east lane when they entered the zone where passing was permitted, the Jarrett car directly behind the Mitchell truck. Nothing in plaintiff's allegations or testimony indicates Jarrett by reason of excessive speed collided with the rear of the Mitchell truck. According to the facts alleged by plaintiff and according to her testimony, the collision was proximately caused by the act of each defendant in turning from a direct line of traffic, not because Jarrett or Mitchell was driving at excessive speed. Hence, the extended instructions as to statutory provisions relating to speed and speed zones were inapplicable to the factual situation set forth in plaintiff's allegations and testimony. Under these circumstances, we are constrained to hold that such instructions were erroneous and prejudicial. Powell v. Clark, 255 N.C. 707, 711, 122 S.E.2d 706, and cases cited.
True, if Mitchell's testimony were accepted, namely, testimony to the effect that Jarrett overtook and struck the rear of the Mitchell truck as it was proceeding straight in the center lane and alongside a station wagon (in the east lane) the Mitchell truck was passing, testimony as to excessive speed on the part of Jarrett would be relevant. However, this is not the case against Jarrett set forth in plaintiff's allegations and testimony. Obviously, the plaintiff cannot predicate her case against Mitchell on one basic factual situation and her case against Jarrett on a different and inconsistent basic factual situation.
In view of the foregoing, the verdict and judgment, as between plaintiff and defendant Jarrett, are vacated; and, as between plaintiff and Jarrett, there must be a new trial.
As to defendant Mitchell, no error.
As to defendant Jarrett, new trial.