Ervin v. Cannon Mills Co., 233 N.C. 415 (1951)

April 11, 1951 · Supreme Court of North Carolina
233 N.C. 415

PAUL R. ERVIN, Administrator of the Estate of MARION LIPE, Deceased, v. CANNON MILLS COMPANY and FRED ALLEN.

(Filed 11 April, 1951.)

1. Trial § 22a—

In determining a motion to nonsuit, the evidence must be viewed in the light most favorable for plaintiff, giving him the benefit of every reasonable inference to be drawn therefrom and assuming to be true all facts in evidence tending to support his cause of action.

2. Trial § 22b—

On motion to nonsuit, evidence offered by defendants will be considered to the extent to which it is favorable to plaintiff or tends to clarify and explain plaintiff’s evidence.

3. Automobiles § 8c—

A motorist making a left turn on the highway is not only required by statute to give the statutory signal during the last fifty feet traveled, but is also required first to exercise reasonable care to ascertain that the movement can be made in safety, G.S. 20-154, and further is under the common law duty to exercise that degree of care which an ordinarily prudent person would exercise under like conditions to avoid injury to- others.

4. Same—

A motorist turning left into an intersection is required to pass beyond the center of the intersection before making the turn. G.S. 20-153.

*4165. Automobiles § 7—

The violation of a public statute regulating tlie operation of motor vehicles on a public highway constitutes negligence, and is actionable if the proximate cause of the injury.

6. Automobiles § 18h (2) — Evidence of negligence in making left turn held sufficient to be submitted to the jury.

The evidence, considered in the light most favorable to plaintiff, tended to show that defendant truck driver in making a left turn into the driveway entrance to the corporate defendant’s plant, extended his hand in the statutory signal for less than fifty feet before starting the turn, “angled” into the driveway before reaching the center of the intersection, giving no signal after he started to turn, and failed to look into his rear view mirror to ascertain whether the movement could be made in safety, although had he done so he could have seen plaintiff’s intestate who was following, him on a motorcycle. Plaintiff’s intestate was fatally injured when the motorcycle collided with the left side of the truck’s front bumper on the left side of the street two to five feet from the curb. Held: The evidence was sufficient to be submitted to the jury on the issue of negligence, and defendants’ motion to nonsuit was properly denied.

7. Automobiles § 14—

The statutory requirement that a motorist before attempting to pass another vehicle traveling in the same direction shall sound his horn does not apply in a business district of a city. G.S. 20-149.

8. Automobiles § 18h (3) — Evidence held not to show contributory negligence of motorcyclist in hitting truck attempting to make left turn.

Evidence disclosing that a motorcyclist following a truck on a city street collided with the left front bumper of the truck two to five feet from the left curb after the truck had slowed down and turned to its left to enter a driveway on the left side of the street without giving the cyclist proper warning, is held not to show as a matter of law contributory negligence on the part of the cyclist constituting a proximate cause of his injury, since the evidence does not show that the cyclist attempted to pass the truck until it had slowed down to make the turn and tends to show that the cyclist turned left in an attempt to avoid the collision, there being no evi: dence of anything unusual in the manner or speed at which the motorcycle was being operated immediately prior to the accident.

9. Negligence § 5—

What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of the attendant circumstances.

Appeal by defendants from Phillips, J., January Term, 1951, of Ieedell.

No error.

This was an action to recover damages for injury and death of plaintiff’s intestate alleged to have been caused by the negligence of the defendants in the operation of a motor truck.

*417Issues of negligence, contributory negligence and damage were submitted to tbe jury and answered in favor of tbe plaintiff. From judgment in accord witb tbe verdict defendants appealed.

Guy T. Carswell, Shannonhouse, Bell & Horn, and Burke & Burke for plaintiff, appellee.

Hartsell •& Hartsell and Scott & Collier for defendants, appellants.

DeviN, J.

Tbe only assignment of error brought forward in defendants’ appeal is tbe denial of tbeir motion for judgment of nonsuit.

Tbe determination of tbis question requires consideration of tbe evidence offered in accord witb tbe rule tbat it be viewed in tbe light most favorable for tbe plaintiff, and tbat be be given the benefit of every reasonable inference to be drawn therefrom. Nash v. Royster, 189 N.C. 408, 127 S.E. 356; Graham v. Gas Co., 231 N.C. 680, 58 S.E. 2d 757. On tbis motion not only will tbe evidence offered by plaintiff be considered, but also tbat offered by defendants which is favorable to tbe plaintiff, or which may be used to clarify and explain plaintiff’s evidence. Harrison v. R. R., 194 N.C. 656, 140 S.E. 598; Gregory v. Ins. Co., 223 N.C. 124, 25 S.E. 2d 398. All tbe facts in evidence which tend to support plaintiff’s cause of action are assumed to be true. Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307.

Tbe evidence offered tended to show tbat on tbe morning of 4 October, 1946, about 10 a.m. tbe truck of defendant Mills Company was being driven by its employee, defendant Allen, in tbe regular course of bis employment, westward along McGill Street in tbe City of Concord. Tbe street was paved, 30 feet wide, straight and practically level, witb slight down grade westward. Tbe street crossed tbe main line of Southern Railway and a spur track, and then Bruton Street, and 40 or 50 feet farther, on tbe south side of McGill Street, and to tbe truck driver’s left, was tbe entrance into tbe plant of tbe defendant Mills Company, into which defendant Allen intended to drive tbe truck. Tbe day was clear and tbe pavement dry. Proceeding along tbe street in tbe same direction behind tbe truck was tbe plaintiff’s intestate riding a motorcycle. Tbe truck was being driven at 20 or 25 miles per hour and was slowed down to make a left turn across the street. Tbe defendant Allen on bis examination said be gave tbe left turn signal, extending bis band and arm out of tbe truck cab window, and then “angled” across tbe street toward tbe entrance to tbe driveway, so tbat tbe distance across instead of being 15 feet was 25 or 30 feet, and tbat after giving tbe signal for left turn as soon as be began to turn be withdrew, bis band in order to bold tbe wheel of tbe truck witb both bands to make tbe turn. He said, “When I got *418ready to turn I took my band in ... I did not keep my band out until tbe impact. I bad brought it back in. You can’t make tbe turn witb one band.” In making tbe left turn tbe truck did not pass to tbe right of tbe point at which tbe center line of tbe mill driveway extended would intersect tbe center line of McGill Street. Tbe truck bad proceeded across tbe street to a point two to five feet from tbe south curb line of McGill Street, just east of tbe entrance to tbe driveway, when it was struck by tbe motorcycle of plaintiff’s intestate. Tbe left front bumper of tbe truck was knocked loose, tbe motorcycle damaged, and plaintiff’s intestate so severely injured that as result be died five days later. There were marks on tbe pavement indicating tbe motorcycle bad traveled from about tbe center of tbe street diagonally 30 feet to tbe point of impact, which was indicated by tbe appearance of dirt on tbe pavement. Tbe officer who investigated tbe collision testified tbe defendant Allen stated at tbe time that be did not use bis rear view mirror. And defendant Allen testified tbe truck was equipped witb outside rear vision mirror, that be did not look out tbe back window of cab and did not see tbe motorcycle until tbe instant of impact; that be bad looked back farther east and seen nothing. “But I didn’t look back at tbe time I turned.” Looking east, vision is unobscured 700 or 800 feet. It is 376 feet from tbe railroad track to tbe entrance to tbe mill. Shortly before tbe collision tbe motorcycle was observed at tbe railroad crossing where it bad momentarily stopped, and a witness testified that it then moved on going west witb nothing unusual as to manner or speed.

Tbe statute prescribes that tbe driver of a motor vehicle upon a highway “before starting, stopping or turning from a direct line shall first see that such movement can be made in safety, . . . and when tbe operation of any other vehicle may be affected by such movement shall give a signal as required in this section plainly visible to tbe driver of such other vehicle. . . . Left Turn — band and arm horizontal, forefinger pointing. All signals to be given from left side of vehicle during last fifty feet traveled.” G.S. 20-154.

It is also provided by statute that at an intersection tbe driver of a vehicle “intending to turn to tbe left shall approach such intersection in tbe lane for the traffic to tbe right of and nearest to tbe center of tbe highway, and in turning shall pass beyond tbe center of tbe intersection, passing as closely as practicable to tbe right thereof before turning such vehicle to tbe left.” G.S. 20-153. Banks v. Shepard, 230 N.C. 86, 52 S.E. 2d 215; Ward v. Bowles, 228 N.C. 273, 45 S.E. 2d 354. Yiolation of a public statute regulating the operation of motor vehicles on tbe highway is a breach of legal duty and constitutes negligence, but it does not afford ground for action unless it be the proximate cause of resultant injury. Holland v. Strader, 216 N.C. 436, 5 S.E. 2d 311.

*419From tbe evidence offered, the inference seems permissible that the driver of defendants’ truck in making a left turn across the street on this occasion failed to give the left turn signal with his hand “during last 50 feet traveled,” as according to his statement he extended his hand when he was 40 or 50 feet away from the driveway into the mill but withdrew his hand when he began to turn, or as he expressed it when he “got ready to turn,” and that due to his “angling” course across the street he began his turn 25 or 30 feet from the entrance. During that time he gave no signal. Though he estimated he kept his hand out about a “minute and a half,” the short distance traveled at the rate given would indicate not more than a second or two of time could have been consumed. “A statutory warning must be substantially complied with, in order to avoid the imputation of negligence.” Huddy 3-4 sec. 53. It is the purview of the statute that the prescribed hand signal should be maintained for a sufficient length of time to enable the driver of the following vehicle to observe it and to understand therefrom what movement is intended. According to defendant Allen’s testimony he did not pass to the right of the point where the line of the mill driveway extended would have intersected the center line of the street. There is thus some evidence the defendants did not comply in all respects with the provisions of the statutes.

But on the motion for judgment of nonsuit the plaintiff is entitled to a favorable consideration of the evidence in another aspect. We do not regard the requirement in G.S. 20-154, that a prescribed hand signal be' given of intention to make a left turn in traffic, as constituting in all cases full compliance with the mandate also expressed in this statute that before turning from a direct line the driver shall first see that such movement can be made in safety, nor do we think the performance of this mechanical act alone relieves the driver of the common law duty to exercise due care in other respects.

Under the allegations and testimony here the obligation rested upon the defendants in the operation of their motor truck upon the streets of the City of Concord to exercise due care not to injure others rightfully using the street by conduct or omission the injurious consequences of which under the circumstances they could reasonably have foreseen and avoided. Failure to perform a duty, whether required by statute or imposed by the circumstances in which the parties are placed, becomes actionable when it is shown to be the proximate cause of injury.

Here the evidence shows the intestate’s motorcycle was proceeding in the same direction as the truck, following behind. The defendants’ truck was equipped with an outside rear view mirror. A glance at this would have revealed the presence of the following vehicle and admonished the driver to exercise care to see that adequate warning of his intention to turn was given, and that the movement of slowing down to 10 or 15 miles *420per hour and then turning diagonally across tbe street to tbe left in front of tbe following vehicle could be made in safety. Tbe duty devolves upon one driving a motor vehicle on tbe highway, intending to make a left turn, to exercise care to avoid injury to a following vehicle by keeping proper lookout, by giving proper signals of bis intention, and by keeping bis motor vehicle under control. 6 A.L.R. 2d 1246 note. Performing tbe requirement of giving appropriate band signals does not necessarily relieve tbe driver of a motor vehicle of tbe duty also to make proper observation of tbe movement of vehicles approaching from tbe rear, and tbe giving of a band signal quickly withdrawn without observing traffic to tbe rear may not be considered as measuring up to tbe full duty imposed upon tbe driver under tbe circumstances. Bauer v. Davis, 43 Cal. App. 2d 764. “Tbe giving of tbe statutory signals is tbe least tbe law requires of a driver of a motor vehicle. After giving tbe statutory signals be cannot close bis eyes. If be sees a person in danger from bis car, be must do what is reasonably necessary to avoid injuring him.” Kullman & Co. v. Samuels, 148 Miss. 871. “He (the driver) is held to tbe duty of seeing what be ought to have seen.” Wall v. Bain, 222 N.C. 375 (379), 23 S.E. 2d 330. “The circumstances and conditions may be such that tbe reasonable and ordinary care of tbe prudent person is not satisfied or fulfilled by mere compliance with the regulation, but requires tbe exercise of more or other care. Whatever precautions ordinary and reasonable care and prudence require for tbe protection of others must be taken even though not exacted by statutory provisions.” Richards v. Begenstos, 237 Iowa 398.

Considering a similar statute, the Court of Civil Appeals of Texas, in Theater Corp. v. Rehmeyer, 115 S.W. 2d 985, used this language: “This duty is separate from tbe duty prescribed by tbe words immediately following, which is to give a ‘plainly visible or audible’ signal to tbe driver of any car tbe movement of which might be affected by such change of course. Obviously tbe signal would be futile if tbe movement could not be made in safety; and, therefore, there is a complete failure of duty upon the part of tbe driver of tbe turning car, if be does not first use reasonable care to see that tbe turn may be made in safety.” In Blash-field, sec. 703, we find tbe principle stated concisely: “Tbe giving of tbe statutory signals will not necessarily relieve a motorist from tbe duty of giving other signals. In other words, such statutes call for tbe minimum of care and not tbe maximum.” From Huddy Automobile Law 3-4, sec. 52, we quote: “Tbe driver of an automobile may be required to give, not only tbe statutory signals, but also other signals, or to slacken speed or take other steps to avoid a collision, if tbe surrounding circumstances and conditions require it. Tbe giving of the statutory signals is tbe least tbe law requires.”

*421This view was expressed by Justice Ervin, speaking for the Court in Grimm v. Watson, ante, 65, 62 S.E. 2d 538: “Under tbe statute codified as G.S. 20-154, any person who undertakes to drive a motor vehicle upon a highway must exercise reasonable care to ascertain that such movement can be made in safety before he turns either to the right or the left from a direct line. Besides he is required by the same statute to signal his intention to turn in the prescribed manner and for the specified distance before changing his course ‘whenever the operation of any other vehicle may be affected by such movement.’ A motorist violates G.S. 20-154 and in consequence is negligent as a matter of law if he fails to observe either of these statutory precautions in changing the course of his vehicle upon the highway, and his negligence in such respect is actionable if it proximately causes injury to another.” See also Cooley v. Baker, 231 N.C. 533, 58 S.E. 2d 115.

The defendants in their brief base their argument for reversal of the ruling below solely on the ground that there was no evidence of negligence on the part of the defendants. The question of the contributory negligence of plaintiff’s intestate is not there presented. However, we have considered the evidence in the record also as it relates to this phase of the case. There was no evidence as to the speed of the motorcycle ridden by plaintiff’s intestate. One witness saw him as he stopped at the railroad crossing and then proceeded on his way in the direction of the place of collision 376 feet away, and saw nothing unusual in the manner or speed with which the motorcycle was being operated. Defendant Allen said no signal was given by the rider of the motorcycle, but as this was in a business district of the City of Concord the requirement that the driver of the following vehicle shall sound his horn before attempting to pass (G.S. 20-149) does not apply. Nor does it appear that the rider of the motorcycle in the first instance was attempting to pass until the truck had slowed down and began turning to the left, as the marks on the pavement would seem to indicate that at that point he turned to his left, apparently to avoid the truck, applied his brakes and traversed a distance of 30 feet before colliding with the truck, which was also turning to the left.

In any event, the question of proximate cause was one for the jury. What is the proximate cause of an injury is ordinarily a question to be determined by the jury as a fact in view of the attendant circumstances. In the language of Justice Barnhill in Conley v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740, “It is only when the facts are all. admitted and only one inference may be drawn from them that the Court will declare whether an act was the proximate cause of the injury or not. But this is rarely the ease.” Nichols v. Goldston, 228 N.C. 514, 46 S.E. 2d 320; Morris v. Transportation Co., 208 N.C. 807, 182 S.E. 487. We *422think the evidence is lacking in probative value to show such contributing negligence on the part of plaintiff’s intestate as would require nonsuit as a matter of law on that ground.

The decision in Stovall v. Ragland, 211 N.C. 536, 190 S.E. 899, cited by defendants, is not controlling on the facts of this case: There the plaintiff, driver, looked both ways, front and rear, and seeing no vehicle approaching, the road being straight for 500 feet, turned to his left without hand signal, and was entering his driveway when struck by defendant’s automobile traveling rapidly. It was held that plaintiff having looked carefully and observed no vehicle approaching was not required under the circumstances to give the signal prescribed by the statute, and nonsuit was reversed.

A careful, analysis of the evidence in the record in the case at bar leads to the conclusion that considering it in the light most favorable for the plaintiff and giving him the benefit of every reasonable inference therefrom it was sufficient to warrant submission to the jury, and that the motion for judgment of nonsuit was properly denied.

As the judge’s charge was not sent up, it is presumed that the pertinent principles of law applicable to the facts of this ease were fully and correctly stated to the jury.

In the trial we find

No error.