Reeves v. Staley, 220 N.C. 573 (1942)

Jan. 7, 1942 · Supreme Court of North Carolina

220 N.C. 573

DR. B. E. REEVES, Administrator of OLIVE C. JONES, Deceased, v. F. M. STALEY and C. B. YATES.

(Filed 7 January, 1942.)

1. Death § 7—

In an action for wrongful death plaintiff must show failure on the part of defendant to exercise proper care in the performance of some legal duty which the defendant owed plaintiff’s intestate under the circumstances in which they were placed, and that such negligent breach of duty was the proximate cause of the injury which caused death.

2. Negligence § 5—

The proximate cause of an injury is that cause which produces 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 result was probable under all the facts as they existed.

3. Negligence § 17b—

IVhat is negligence is a question of law, and when the facts are admitted or established it is for the court to say whether negligence exists, and, if so, whether it constitutes a proximate cause.

4. Negligence § 19a—

A nonsuit on the issue of negligence is proper when all the evidence, taken in the light most favorable to plaintiff, fails to show any actionable negligence on the part of the defendant, or when it clearly appears from the evidence that the injury complained of was independently and proximately produced by the wrongful act, neglect or default of an outside agency or responsible third person.

5. Negligence § 7—

Intervening negligence will insulate the original negligence if the original wrongdoer could not reasonably foresee the intervening act and resultant injury, since in that event the sequence of events is broken by a new and independent cause.

6. Automobiles § 8—

The operator of a motor vehicle is under duty, independent of statutory requirements, to exercise that degree of care which an ordinarily prudent man would exercise under similar circumstances.

7. Same—

Ordinary care in the operation of a motor vehicle requires the operator to keep same under control, and to keep a reasonably careful lookout so as to avoid collision with people and vehicles upon the highway.

8. Automobiles § 18a—

A motorist is not under duty to anticipate negligence on the part of others but, in the absence of anything which gives or should give notice to the contrary, is entitled to assume, and. to act on the assumption, that others will exercise ordinary care for their own safety.

9. Automobiles § 12e—

The failure of a motorist, traveling upon a servient highway, to stop in obedience to signs erected by the Highway Commission before entering an intersection with a dominant highway, as required by statute, sec. 120, ch. 407, Public Laws 1937, is not negligence or contributory negligence per se, but is a fact to be considered with other facts and circumstances adduced by the evidence in passing upon the question.

10. Automobiles § 18d — Evidence held to show that negligence of driver of car was sole proximate cause of collision, and insulated any negligence on the part of the driver of the truck.

All the evidence tended to show that the car in which plaintiff’s intestate was riding was being driven upon a servient highway and entered an intersection with a dominant highway without slackening speed, and collided with a truck which was being driven along the dominant highway in approximately the opposite direction. All the evidence further tended to show that the Highway Commission had erected a “stop” and “junction” sign along the servient highway and that the view of the truck was clear and unobstructed from the servient highway. The driver of the ear testified by deposition that he did not see the truck and did not know whether he struck a truck or automobile, and that he saw a sign but could not discover what was on it although other witnesses testified that the “stop” and “junction” signs were in plain view, and an occupant of the car testified that he saw and read them. Plaintiff introduced evidence that the truck was operated under a franchise for transporting express and was traveling in excess of 35 miles per hour. Held: The failure of the driver of the car to stop before entering the intersection was evidence of negligence which, considered with the evidence that he failed to see the truck although it was obvious and should have been seen bjr him, established negligence as a matter of law, which negligence the driver of the truck could not have reasonably foreseen, and therefore the negligence of the driver of the car was an intervening independent act insulating any negligence on the part of the truck driver, since the speed of the truck in excess of 35 miles per hour, made prima facie evidence that such speed is unlawful by sec. 103, ch. 407, Public Laws 1937, would not have resulted in injury but for the intervening negligence of the driver of the car.

11. Automobiles § 12e—

The driver of a motor vehicle along a dominant highway who has knowledge that stop and warning signs have been erected along the servi-ent highway, and knows that his vehicle is in plain view of a motorist traveling along the servient highway, is entitled to assume up until the moment of impact, and to act on the assumption in the absence of anything which gives or should give notice to the contrary, that the driver upon the servient highway will obey the law and stop before entering the intersection.

12. Automobiles § 21—

Where the negligence of the driver of the car in which a guest is riding is the sole proximate cause of the injury insulating any negligence on the part of the driver of the other vehicle involved in the collision, the guest, or in case of her fatal injury, her administrator, is not entitled to recover of the driver of the other car or his superior.

Appeal by plaintiff from Warlick, J., at July Civil Term, 1941, of Ashe.

Civil action for recovery for alleged wrongful death. O. S., 160-161.

These facts appear to be uncontroverted: Plaintiff’s intestate, Olive C. J ones, came to her death in the forenoon of 8 July, 1939, at intersection of U. S. Highway No. 421 and State Highway No. 16, at Miller’s Creek, North Carolina, in a collision between a Ford sedan, owned and operated by Elijah Sexton in which he, she and four others, two men and two boys, were riding — she on the front seat with driver, and the others on rear seat, traveling southeasterly on State Highway No. 16 from the town of Jefferson toward the town of North Wilkesboro, and a motor express truck owned by defendant, C. B. Tates, operated under franchise for purpose of transporting express, traveling northwesterly on U. S. Highway No. 421, from North Wilkesboro toward tbe town of Boone and driven by defendant, F. M. Staley, a duly authorized and empowered agent and employee of his codefendant, acting at the time in the scope of his employment and in the furtherance of the business of his principal. As H. S. Highway No. 421, for a distance of 1,500 feet, approaches the point where State Highway No. 16 intersects with it at Miller’s Creek, it runs straight on a north 47 degrees west course, veering slightly to south of that course after it passes the point of intersection. As State Highway 16 approaches the said point of intersection it runs south slightly to the east, but before reaching the intersection the road changes to a southeast course at a greater degree than the course of U. S. Highway 421 and runs straight to the intersection with the latter highway, and enters same on a slightly acute angle. As between the two highways, H. S. Highway 421 is the dominant, and State Highway 16, the subservient road. On the latter there are Stop and Junction signs, erected by State Highway Commission on the right-hand side of one traveling from the north toward the intersection.

Plaintiff in his complaint alleges that while the automobile in which his intestate was riding was being operated in a proper and lawful manner, on its right-hand side of the center line of the highway, and after it had entered and traversed this intersection of said highways, it was run into head-on by the transfer truck.

Plaintiff further alleges in substance as acts of negligence of defendants proximately causing the collision and resultant death to his intestate, that defendant Staley, agent and employee of his codefendant, unlawfully, negligently, and recklessly operated the transfer truck (a) at an excessive and unlawful rate of speed, at least sixty miles an hour, and so as to render it unmanageable; (b) to the left of the center line of the highway; (c) in a reckless and indifferent manner, without due care and circumspection, or proper regard for the lives and safety of others, and so as to endanger the lives and property of others upon the highway; and (d) in failing (1) to apply the brakes thereon and to check its speed, (2) to keep a proper lookout upon approaching the intersection beyond which the collision occurred, (3) to yield the right of way to the automobile which had entered and traversed the intersection before it was run into by the truck, and (4) to yield to the automobile its right to one-half of the thirty-six feet wide hard surfaced portion of the highway.

Defendants, in their answer, deny these allegations of the complaint, and, as further defense, and by way of new matter, make substantially these averments: (1) That defendant Staley was driving the truck in question at a slow, lawful, and reasonable rate of speed, entirely upon his right-hand side of U. S. Highway 421, when Elijah Sexton, operating the car in which intestate was riding, and traveling on State Highway 16, without any warning or signal, and without stopping as required by law, or even slowing the unlawful speed of sixty-five to seventy miles per hour at which said car was moving as it approached the intersection of said highways, unlawfully, carelessly, and recklessly drove the car into the intersection directly in front, and in the path of the truck, in willful and wanton disregard of the rights and safety, and so as to endanger the person and property of others, thereby solely and proximately causing the collision. (2) That plaintiffs intestate, riding on the front seat with Elijah Sexton, in a position to see, understand, and appreciate the reckless and negligent manner in which he was operating his car, and the circumstances confronting him, was contribuíorily negligent in failing to warn him.

Plaintiff, in reply, denies that Elijah Sexton was negligent in any manner, as averred by defendant, but alleges that if he were negligent, snch negligence only concurred with that of defendants, as alleged, in proximately causing the collision and resultant death of intestate.

Upon the trial below, plaintiff offered pertinent testimony of various witnesses, as follows: Lundy Pierce testified that, while he runs a filling station on the northeast side of U. S. Highway No. 421, he was standing on the south shoulder of the hard surface, about 40 or 50 feet from the point of the accident. He describes the occurrence in this manner: “The first thing I knew Mr. Staley blew his horn. . . . When I first saw him he was on the right-hand side of the center of the highway Mo. 421, leading toward Boone. When he blew his horn, I looked around, and he threw up his hand, and by that time I noticed a car coming into the intersection . . . the car Sexton was driving, coming in from 16. Staley was coming up on his side of the road and here comes the automobile on into the intersection. When they saw they were going to hit, Staley cut to the left and the car cut to the right, . . . this made them both cutting in the same direction when they bit ... at tbe end of tbe bard surface . . . partly on botb sides of tbe center line. When tbey struck tbe truck bounced up and tbe car turned back around beaded directly west. Tbe truck turned sideways and bounced up and came back down ... on tbe back end of tbe automobile and knocked tbe automobile up tbe road 75 or 80 feet from where tbey bit. Tbe truck turned around. . ... It was lying across tbe road on tbe left side of tbe center of No. 421. . . . It may bave been partly on botb sides of tbe center. . . . Staley’s truck was a mixed load of stuff, feed and grain. In my opinion be was not driving over 35 miles an bour. I saw tbe other car approaching tbe intersection, and in my opinion there wasn’t much difference in tbe rate of speed tbey were driving. Botb traveling about 35 miles an bour. If any difference tbe car . . . was running faster than tbe truck. . . . Botb cars were badly damaged. . . . There were no cars parked in front of tbe filling station that would obstruct tbe view of a party coming from North Wilkesboro going toward West Jefferson, in either direction.”

Then, on cross-examination, Pierce continued: “. . . There was a Stop sign on 16 below my filling station as you come into 421 from West Jefferson. Said sign has letters in black about seven inches high with yellow background and says STOP, and . . . was in plain view of any person driving a car from Jefferson to tbe intersection and there was also a sign right above and on Highway 16 just before you enter tbe intersection facing the driver coming from toward Jefferson with tbe word ‘JUNCTION’ . . . letters ... 7 inches ... in plain view of any person coming from toward West Jefferson. . . . Staley blew bis born before be entered tbe intersection. . . . He was not looking off of tbe road at tbe time be blew bis born. . . . Tbe truck was lying on its side after tbe wreck. ... I didn’t bear tbe party driving tbe Sexton car blow tbe born before be entered tbe intersection. I think I could bave beard it. Tbe Sexton car .did not check up in entering tbe highway. ... It didn’t stop until it bit tbe truck. I saw tbe car just as it was entering the intersection . . . and just a moment before tbey bit. Tbe front end of tbe car ran against tbe front side of tbe truck and tbe truck careened around. . . . There is a section of tbe intersection that is not paved. There is nothing to obstruct tbe view of tbe sign ‘JUNCTION,’ or signboard, of a car driven from West Jefferson into tbe . . . intersection. . . . There is nothing to prevent a driver of such car from seeing a car coming from toward North Wilkesboro. You could see about 1,200 or 1,500 feet from toward North Wilkesboro to tbe intersection.

Robert Byers, testifying, said: “I was standing east of tbe intersection. . . . Lundy Pierce . . . and I were standing about five or six feet apart. I saw tbe truck coming. . . . He was making between 30 and 35 miles an bour. I did not see tbe car coming into tbe intersection. I didn’t see it until after tbe wreck occurred. I saw tbe signs where tbe ears bit. They were about tbe middle of the road. . . . "When I first saw tbe truck it was coming on its rigbt-band side of tbe main thoroughfare, No. 421. . . . On tbe Jefferson road beyond the intersection there is a big yellow sign with black letters saying ‘STOP,’ ... a little closer to tbe intersection there was a sign on tbe right side saying ‘JUNCTION.’ The signs were there tbe day tbe wreck occurred. Tbe last time I saw tbe truck before I beard tbe collision it was on tbe right of tbe center of tbe National Highway coming ... to Boone ... I saw some marks on tbe road where tbe cars ran together. They were about tbe center of Highway No. 421, a little more of them on tbe left-hand side.”

Carlyle Ingle, State Highway Patrolman, who arrived on tbe scene after tbe collision, observed marks on tbe road. He testified: “They started'near tbe end of tbe concrete on No. 421. . . . Tbe first scratch marks appeared near tbe center of tbe road, looking like at tbe point of impact . . . and led to tbe left to tbe truck. . . . From tbe appearance of tbe car, it bad a definite collision with something on tbe left-hand side of its front. . . . There was a Stop sign before reaching tbe intersection on Highway No. 16, which comes from Jefferson, erected by tbe State Highway Commission. It was plainly visible. . . . TJ. S. 421 was tbe dominant road. There is no rule of tbe road or regulation requiring a man on 421 to stop there. There was a requirement that one coming along No. 16 should stop before entering tbe intersection. Tbe front wheels of tbe truck were damaged. . . . Tbe best I remember tbe right front one was knocked back and tbe axle bent and the spring broken. Tbe front end of tbe truck and tbe left front end of tbe car were damaged. As tbe truck spun around tbe side of it bit tbe back of tbe car.”

E. C. Davis testified: “I was in tbe car . . . Elijah Sexton was driving ... to 'W’inston-Salem. . . . Mrs. Jones was in tbe ear. ... I know that she was riding ... as a guest. I bad been over tbe road one time before tbe wreck happened. We were going into tbe intersection . . . and were making probably 35 miles per bour. We bad already gotten across tbe center of tbe road making tbe turn to go into Wilkesboro. We beard tbe truck blow. Of course it was done right now; we was over tbe mark, over tbe center of tbe highway when tbe truck bit us. . . . We were on tbe rigbt-band side of tbe center of tbe highway going into Wilkesboro when it happened. We were making tbe turn to go into North Wilkesboro when the truck bit us. . . . When tbe truck struck us it was going anywhere from 45 to 50 miles an Four. ... I remember seeing a small sign up on tbe bank while approaching the intersection. I couldn’t say whether Mr. Sexton, who was driving the car, slacked his speed any when he came into the intersection. . . . He was going around 35 miles an hour. He didn’t stop before entering the intersection.” Then, on cross-examination, the witness continued: “The sign I was telling . . . about is on the road coming in from Jefferson ... on the right side, setting up on the bank. On the sign are letters in black saying ‘STOP.’ The sign was not in plain view of a person driving from No. 16 into the intersection. It was grown up in weeds and set up on the bank. I did not see it plain. I was along there about ten days before that and it was there then. There was a sign in plain view of a person driving in from Jefferson saying ‘JUNCTION.’

“I was riding in the back seat in the middle. My father was on my left and the two little hoys on the right . . . four people in the back seat. The woman who was killed was riding in the front seat . . . on the side next to the Stop sign and . . . the Junction sign, . . . right-hand side going toward North Wilkesboro. . . . There was nothing to obstruct the view of the driver from the junction sign before entering the highway. When I first saw the truck it was right close to us and I heard the horn blow. It was probably 30 or 40 feet away. I don’t know rvhere it was traveling when I first saw it, but it was over on the left-hand side when it hit us. I cannot say for sure just where the truck was when I first saw it because it was done so quickly. I wouldn’t say that the truck wasn’t on its right side of the road when I first saw it.”

Elijah Sexton, by deposition, testified: “I owned the 1937 Ford two-door sedan . . . car I was driving. . . . Just prior to the time I entered the intersection I cannot say just how fast I was driving, but I had never driven over 40 miles an hour that morning. I do not know whether I slowed down any in approaching the intersection. I cannot recall anything about whether I slowed down or blew my horn. I recall seeing a sign below the intersection but I don’t know what kind of sign it was. I could not discover what was on the sign. I don’t remember whether I stopped prior to entering the intersection. The wreck happened at the intersection or close to it. I do not recall who I had the wreck with. I don’t remember whether it was a truck or automobile. . . . I never did see it, but they said it was a truck. I don’t remember seeing it. Tou could see down the highway toward North 'Wilkes-boro quite a distance. I had never been over the road before. I did not know there was an intersection there. I do not know how fast I was going at the time I entered it. I do not recall blowing my horn. At the time of the collision I was knocked unconscious. That is all I can say. ... I do not remember anyone in tbe car making a remark about entering the intersection or asking me to slow down. I do not remember any of tbe parties warning me about tbe intersection or to slow down, or making any sign of alarm. . . . Tbe truck was coming from Wilkesboro. I was going toward Wilkesboro.”

On cross-examination, Sexton further testified: “Tbe brakes and general state of repair of my car was good. . . . Sbe (Mrs. Jones) was riding in my car as a guest. Sbe bad no control or management whatsoever over my automobile. ... I was not drinking. ... I bad been driving my car at a lawful rate of speed and in a careful manner up to tbe time tbe collision occurred. I saw a sign at or near tbe intersection but I couldn’t read it because bushes were grown up around it. . . . Tbe cars were traveling in opposite directions and meeting each other when they ran together.Tbe surface of tbe road, was dry and tbe day clear. ... If there was a Stop sign at tbe intersection tbe fellow on tbe Boone Highway bad tbe right of way.”

Defendants, reserving exception to denial of their motion for judgment as in case of nonsuit, offered testimony of Fred M. Staley and Weldon McCoy. Staley gave this narrative: “On July 8, 1939, ... I was going to Boone, traveling west ... on National Highway No. 421. I know where tbe State road from Jefferson intersects with No. 421 near Miller’s Greek. The wreck was just beyond tbe center of tbe intersection. I was operating my car on tbe right-band side of U. S. 421 when it occurred. The Ford car came out of the mouth of No. 16, with which road I am familiar. Northwest of tbe intersection on tbe right side of No. 16 there was a Stop sign and also a Junction sign. . . . Immediately prior to tbe impact my truck was on tbe right of the center line of tbe bard surfaced portion of tbe highway. I was driving 20 or 25 miles an hour. In my opinion tbe car driven by Mr. Sexton was traveling between 50 and 60 miles an hour. The right front headlight and fender and wheel of my truck were stricken. Tbe left front fender and headlight of Mr. Sexton’s car came in contact with my truck. When tbe automobiles collided they both turned southwest-wardly and tbe truck turned on west of No. 421 and came to rest on its side due south of tbe intersection. Tbe Ford stopped ... on its right side. My truck entered tbe intersection first. I bad taken my foot off tbe gas and put it on the brake immediately before entering tbe intersection. When I saw be was coming on in I hit tbe brakes immediately. I mean by bitting the brakes, I pumped tbe brakes . . . hydraulic brakes. I bad them on bard enough by tbe time tbe crash occurred. Mr. Sexton ... did not sound his horn or do anything or slow down tbe speed of the automobile before entering tbe intersection. My truck was in plain view wben be came up to tbe inter'section for several hundred feet. You can see from 300 to 450 feet from where 16 enters the intersection. . . . My truck had never been on my left of the center line of the highway before the cars came together.”

Weldon McCoy testified: “I was staying at Myers Filling Station which is right in Miller’s Creek on left side of the National Highway going to Boone. At the time of the wreck I was standing on the side of the road the filling station is on and up next to Wilkesboro. I saw Fred Staley operating his truck. . . . Immediately before the wreck his truck was on his right side. I saw the wreck. I saw the car driven by Elijah Sexton; it was coming out of 16 from West Jefferson. No. 16 does not cross No. 421, it enters it. At time of the wreck there was a sign on No. 16 down some distance from the intersection with the word ‘STOP’ on it. There was also a junction sign before you come into the intersection. I saw the car driven by Sexton before it entered the intersection. It did not stop or slow its speed from the sign until it entered the intersection. ... In my opinion the Sexton car was traveling 55 or 60 miles an hour. The truck -was making 25 or 30 miles an hour before it entered, before he put on the brakes. The truck driver put on his brakes and had just about stopped when the car and truck hit. The left-hand fender and light on the car struck the right-hand side of the truck. When the car came into the intersection he tried to turn ... to the right. It looked like he tried to beat the truck out and go around and when he turned to the right his left-hand fender struck and that turned the ear to the right. ... I said the car was on its right side of the road and the truck on its right side when the car hit the truck. The cars came together on the right-hand side going toward Boone.”

From judgment as in case of nonsuit at close of all the evidence, plaintiff appeals to Supreme Court and assigns error.

Bowie & Bowie for plaintiff, appellant.

Ira T. Johnston, Hayes & Hayes, and Trivette & Holshouser for defendants, appellees.

WiNBORNE, J.

When the evidence is considered in the light most favorable to plaintiff, we are of opinion that the case comes within the principles enunciated in Smith v. Sink, 211 N. C., 125, 192 S. E., 108; Powers v. Sternberg, 213 N. C., 41, 195 S. E., 88; and Butner v. Spease, 211 N. C., 82, 6 S. E. (2d), 808, and is insufficient to require that an issue of negligence be submitted to the jury. It is manifest that Elijah Sexton was negligent and that his negligence insulated negligence, if any, of defendants, and was tbe sole proximate cause of tbe collision. Tbis conclusion finds support in Harton v. Telephone Co., 146 N. C., 429, 59 S. E., 1022; Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1; Thompson v. R. R., 195 N. C., 663, 143 S. E., 186; Craver v. Cotton Mills, 196 N. C., 330, 145 S. E., 570; Boyd v. R. R., 200 N. C., 324, 156 S. E., 507; Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555; Baker v. R. R., 205 N. C., 329, 171 S. E., 342; Newell v. Darnell, 209 N. C., 254, 183 S. E., 374; Smith v. Sink, supra; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326.

In an action for recovery of damages for wrongful death, resulting from alleged actionable negligence, tbe plaintiff must sbow: First, tbat there has been, a failure on tbe part of defendant to exercise proper care in tbe performance of some legal duty wbicb tbe defendant owed plaintiff’s intestate under tbe circumstances in wbicb they were placed; and second, tbat sucb negligent breach of duty was tbe proximate cause of the injury wbicb produced tbe death — a cause tbat produced tbe result in continuous sequence, and without wbicb it would not have occurred, and one from wbicb any man of ordinary prudence could have foreseen tbat sucb result was probable under all tbe facts as they existed. Whitt v. Rand, 187 N. C., 805, 123 S. E., 84; Murray v. R. R., supra; Mills v. Moore, 219 N. C., 25, 12 S. E. (2d), 661; White v. Chappell, 219 N. C., 652, 14 S. E. (2d), 843, and cases cited.

Tbe principle prevails in tbis State tbat what is negligence is a question of law, and when tbe facts are admitted or established, tbe court must say whether it does or does not exist. “Tbis rule extends and applies not only to the question of negligent breach of duty, but also to the feature of proximate cause.” Hoke, J., in Hicks v. Mfg. Co., 138 N. C., 319, 50 S. E., 703; Russell v. R. R., 118 N. C., 1098, 24 S. E., 512; Clinard v. Electric Co., 192 N. C., 736, 136 S. E., 1; Murray v. R. R., supra.

In Lineberry v. R. R., supra, Clarkson, J., said: “It is well settled tbat where tbe facts are all admitted, and only one inference may be drawn from them, tbe Court will declare whether an act was tbe proximate cause of tbe injury or not.” Again in Russell v. R. R., supra, it is stated tbat “Where tbe facts are undisputed and but a single inference can be drawn from them, it is tbe exclusive duty of tbe court to determine whether an injury has been caused by tbe negligence of one or tbe concurrent negligence of both of tbe parties.”

Furthermore, it is proper in negligence cases to sustain a demurrer to tbe evidence and enter judgment as of nonsuit, “1. When all tbe evidence taken in tbe light most favorable to tbe plaintiff, fails to sbow any actionable negligence on tbe part of tbe defendant ... 2. When it clearly appears from tbe evidence tbat tbe injury complained of was independently and proximately produced by tbe wrongful act, neglect, or default of an outside agency or responsible third person . . .,” Smith v. Sink, supra, and eases cited. See, also, Boyd v. R. R., supra; Powers v. Sternberg, supra; Butner v. Spease, supra; Murray v. R. R., supra.

“Foreseeability is tbe test of whether the intervening act is such a new, independent and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, that the sequence of events is not broken by a new and independent cause, and in such event the original wrongdoer remains liable,” Brogden, J., in Hinnant v. R. R., supra. Harton v. Telephone Co., supra; Herman v. R. R., 197 N. C., 718, 150 S. E., 361; Beach v. Patton, 208 N. C., 134, 179 S. E., 446; Butner v. Spease, supra; Murray v. R. R., supra.

Too, 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. 5 Am. Jur., Automobiles, sections 165, 166, 167.

However, a motorist 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 on 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, Cory v. Cory, 205 N. C., 205, 170 S. E., 629; Jones v. Bagwell, 207 N. C., 378, 177 S. E., 170; Hancock v. Wilson, 211 N. C., 129, 189 S. E., 631; Sebastian v. Motor Lines, 213 N. C., 770, 197 S. E., 539; Guthrie v. Gocking, 214 N. C., 513, 199 S. E., 707; Butner v. Spease, supra.

Furthermore, it is provided by chapter 407, Public Laws 1937, section 120, that the State Highway Commission, with reference to State Highways, is 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. 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.”

In Sebastian, v. Motor Lines, supra, regarding the statute, it is held, "as a necessary corollary or as the rationale of the statute,” that where the party charged is a defendant in any such action the failure so to stop is not to be considered negligence per se, but only evidence thereof to be considered with other facts in the case in determining whether the defendant in such action is guilty of negligence.” In like manner and for the same reason, the principle may be extended to anyone who violates the statute.

It is provided in section 103 of chapter 407 of Public Laws 1937, that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing; that where no special hazard exists a speed of thirty-five miles per hour for motor vehicles designed, equipped for, or engaged in transporting property shall be lawful; but any speed in excess of that limit shall be prima facie evidence that the speed is not reasonable or prudent and that it is unlawful; but that the provisions of the section shall not be construed to relieve the plaintiff in any civil action from the burden of proving-negligence upon the part of the defendant as the proximate cause of an accident.

Applying these principles to the evidence in the case in hand, it was unlawful for Elijah Sexton, the driver of the Ford sedan in which plaintiff’s intestate was riding, to fail to stop, in obedience to the stop sign, erected by the State Highway Commission on State Highway No. 16, before attempting to enter U. S. Highway No. 421, the dominant highway, and his failure so to do is evidence of negligence to be considered with other facts in thé case in determining whether he was guilty of negligence. When so considered the evidence of his conduct makes him guilty of negligence as a matter of law. While the “Stop” and “Junction” signs, as testified to by other witnesses for plaintiff, were “in plain view” of, or “plainly visible” to any person traveling on Highway No. 16 toward the entrance into Highway No. 421, and while another, E. C. Davis, riding in the Ford sedan with Sexton, saw those signs, and saw the black letters “Stop,” and while a sign was seen by Sexton, he admits that he approached the point of the wreck without being able to recall that he slackened his speed, which he recalled had not been over forty miles per hour that morning, and wrecked his car in collision with the truck without seeing the truck, when there was nothing to prevent him from seeing it. All the evidence for plaintiff, as well as for the defendant, shows that, in approaching the point where Highway No. 16 enters Highway No. 421, there was nothing to obstruct the truck from Sexton’s view. Yet, he admits that he “never did see” the truck and does not .know whether he struck a truck or an automobile. Further, the evidence shows that every appearance indicates that Sexton was running Ms Ford into a zone of danger wMch be should have seen and which others, similarly situated, did see, if he did not, and that he failed to see the obvious. Such negligence, if the sole proximate cause of injury or death, will bar recovery, and this extends even to a guest. Powers v. Sternberg, supra, and Miller v. R. R., ante, 562.

The defendant Staley, who was acquainted with the conditions on State Highway No. 16, but operating the truck upon the dominant highway, was under no duty to anticipate that Sexton, in approaching the intersection, the truck being in plain view, would fail to stop as required by the statute; and in the absence of anything which gave or should give notice to the contrary, he was entitled to assume and to act on the assumption, even to the last moment, that Sexton would not only exercise ordinary care for his own safety as well as those riding in his car, but would act in obedience to the statute, and stop before entering the dominant highway. The evidence points to the emergency caused by the failure of Sexton to stop. Such a situation was not reasonably foreseeable by Staley. All the evidence further shows that Staley was operating the truck on his right-hand side of the dominant highway immediately before the collision.

It is contended by the plaintiff, however, that there is evidence tending to show that the speed of the truck was in excess of thirty-five miles an hour, and, therefore, prima facie unlawful. Even so, it is manifest from the evidence that its speed would have resulted in no injury but for the negligent act of Sexton. Hence, the proximate cause of the collision must be attributed to the gross and palpable negligence of Sexton, as in Butner v. Spease, supra.

The judgment below is

Affirmed.