Walker v. American Bakeries Co., 234 N.C. 440 (1951)

Nov. 7, 1951 · Supreme Court of North Carolina

234 N.C. 440

HENRY M. WALKER v. AMERICAN BAKERIES COMPANY.

(Filed 7 November, 1951.)

1. Statutes § 5a—

Subsections of an act should be read together so as to harmonize them and give effect to each without repugnancy or inconsistency if possible.

2. Automobiles § 14—

Neither G.S. 20-150 (b) nor G.S. 20-150 (d) applies unless the driver is proceeding upon a curve, in which event if the curve is marked by a center line the driver is forbidden to drive to the left thereof, and if the curve is not so marked he may not drive to the left of the highway to pass an overtaken vehicle unless his view is unobstructed for a distance of 500 feet.

3. Same—

Where there is conflicting evidence as to whether the accident occurred on a curve and whether there was a center line on the highway, an instruction to the effect that if plaintiff had an unobstructed view for 500 feet or more the law did not prohibit him from driving to the left of the center line, must be held for prejudicial error.

4. Same—

Although G.S. 20-150 (b) and G.S. 20-150 (d) are designed primarily to prevent a vehicle, in passing an overtaken vehicle, from colliding with another vehicle approaching from the opposite direction, the statutes are germane in an action involving a collision between overtaking and overtaken vehicles, since the driver of the overtaken vehicle is not required to anticipate that the other vehicle will attempt to pass in violation of statute.

Appeal by defendant from Phillips, J., and a jury, at the February Term, 1951, of the Superior Court of Cabareus County.

Civil action to recover damages for injury to plaintiff’s tractor-trailer combination allegedly caused by actionable negligence of driver of defendant’s truck.

Tbe accident occurred upon United States Highway No. 29 in Cabar-rus County, North Carolina, on 8 December, 1949, when the plaintiff’s tractor-trailer combination overtook and attempted to pass the defendant’s panel truck, which was admittedly being operated by its regular driver on a business mission for the defendant.

The plaintiff’s evidence made out this case:

The two vehicles were traveling south along the right side of the highway at a speed of 35 miles an hour, the tractor-trailer combination in the rear of the truck. On reaching a point where the highway was virtually level and straight, the plaintiff observed that the left side of the highway was clearly visible and free of oncoming traffic for about 600 feet ahead. The plaintiff forthwith gave the driver of the defendant’s truck an audible warning with his horn of his intention to pass the truck, and drove bis tractor-trailer combination onto tbe left side of tbe highway at an accelerated speed in order to pass tbe defendant’s truck, wbicb was still proceeding southward along tbe right side of tbe bigbway. Just as tbe tractor-trailer combination was catching up with tbe truck, tbe driver of tbe truck swerved the truck sharply to tbe left without prior signal or warning, and entered upon tbe left side of tbe bigbway directly in front of tbe overtaking tractor-trailer combination for tbe apparent purpose of crossing tbe left side of tbe bigbway and going to a service station standing nearby. On being confronted by this emergency, tbe plaintiff turned bis tractor-trailer combination to tbe left and drove it from tbe bigbway to avoid tbe impending collision with tbe truck. As a consequence, tbe tractor-trailer combination was overturned and substantially damaged.

According to the defendant’s testimony, tbe accident happened in this way:

Tbe driver of tbe southbound truck intended to visit tbe store of a customer on tbe left of tbe bigbway. After looking and listening in vain for approaching vehicles, and giving a band signal from tbe left side of tbe truck during tbe last 100 feet traveled indicating bis purpose to make a left turn across tbe bigbway at tbe store, tbe driver pulled tbe truck to tbe left. As tbe left front wheel of tbe truck crossed tbe center of tbe bigbway, tbe plaintiff’s tractor-trailer combination came upon tbe scene from tbe rear at a speed of approximately 60 miles an hour, passed between tbe truck and tbe store, left tbe bigbway, and overturned.

Tbe evidence for tbe plaintiff indicated that be attempted to pass tbe overtaken truck on a straight stretch of unmarked bigbway, whereas tbe testimony for tbe defendant tended to show that tbe accident occurred upon a curve in tbe bigbway marked by a visible center line placed upon tbe bigbway by tbe State Highway and Public Works Commission.

Issues were submitted to and answered by the jury as follows:

1. Was tbe plaintiff’s vehicle damaged by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

2. Was tbe plaintiff guilty of contributory negligence, as alleged in tbe answer ? Answer: No.

3. What damage, if any, is plaintiff entitled to recover ? Answer: $2,650.00.

Tbe court entered judgment on tbe verdict, and the defendant appealed, assigning excerpts from tbe charge as error.

John Hugh Williams for plaintiff, appellee.

Hartsell <& Hartsell fo.r defendant, appellant.

EeyiN, J.

The defendant deems the question of the sufficiency of the plaintiffs evidence to carry the ease to the jury foreclosed against it by prior decisions. Grimm v. Watson, 233 N.C. 65, 62 S.E. 2d 538; Pridgen v. Produce Co., 199 N.C. 560, 155 S.E. 247; Stevens v. Rostan, 196 N.C. 314, 145 S.E. 555. For this reason, it does not assign as error the refusal ■of the trial judge to dismiss the action upon a compulsory nonsuit.

Its counsel earnestly contend, however, that the judge committed error in giving the jury this instruction: “The court charges you if there was a solid line and if the plaintiff had a clear unobstructed view for a distance of 500 feet or more, the law did not require him to wait until he got away from this line before he could pass.”

The driver of an automobile desiring to pass an overtaken vehicle must observe the statutory regulations which prohibit passing at certain places on the highway. Two of these regulations forbid the overtaking and passing of vehicles upon curves in the highway where specified conditions exist. They are as follows:

1. “The driver of a vehicle shall not overtake and pass another vehicle proceeding in the same direction . . . upon a curve in the highway where the driver’s view along the highway is obstructed within a distance of five hundred feet.” G.S. 20-150 (b).

2. “The driver of a vehicle shall not drive to the left side of the center line of a highway . . . upon a curve in the highway where such center line has been placed upon such highway by the state highway and public works commission, and is visible.” G.S. 20-150 (d).

These regulations are parts of the same statute. It is a basic rule of statutory construction that “the various provisions of an act should be read so that all may, if possible, have their due and conjoint effect without repugnancy or inconsistency, so as to render the statute a consistent and harmonious whole.” 50 Am. Jur., Statutes, section 363. See, also, in this connection: Rice v. Panel Co., 199 N.C. 154, 154 S.E. 69; Jones v. Board of Education, 185 N.C. 303, 117 S.E. 37.

When this rule is applied in this case, it is evident that the statutory provisions under consideration are harmonious rather than conflictive. They are not designed to regulate the behaviour of the operator of an overtaking automobile in any event unless he is traveling upon a curve in the highway. Whether the one statutory regulation or the other applies to the driver of an overtaking vehicle proceeding upon a curve in the highway depends on whether the curve is marked by a visible center line placed upon the highway by the State Highway and Public Works Commission. Where the curve is so marked, the action of the operator of the overtaking automobile is governed by G.S. 20-150 (d), which forbids him to drive to the left side of the center line in order to pass the overtaken vehicle; and where the curve is not so marked, the conduct of the driver of tbe overtaking automobile is controlled by G.S. 20-150(b), wbicb permits bim to pass tbe overtaken vehicle unless bis view along tbe highway is obstructed within a distance of five hundred feet.

Tbe instruction under examination would be unobjectionable if all of tbe testimony supported tbe plaintiff’s contention that be overtook and attempted to pass tbe defendant’s truck upon a straight stretch of highway. Furthermore, it would be harmless if all tbe evidence indicated that tbe event occurred upon an unmarked curve. But tbe defendant introduced testimony tending to show that tbe plaintiff undertook to pass tbe overtaken truck upon a curve in tbe highway marked by a visible center line placed upon tbe highway by tbe State Highway and Public Works Commission. In tbe light of this evidence, tbe wholly unqualified instruction that tbe plaintiff bad tbe legal right to cross tbe center line in order to pass tbe overtaken truck constituted prejudicial error, entitling defendant to a new trial. Tbe unqualified instruction nullified tbe provisions of G.S. 20-150 (d).

Although tbe statute is designed primarily to prevent collision between an overtaking automobile and a vehicle coming from tbe opposite direction, its provisions are germane to litigation between an overtaking motorist and tbe driver of an overtaken vehicle if there is evidence to tbe effect that tbe underlying accident was occasioned by an unsuccessful effort on tbe part of the former to pass tbe latter upon a marked curve. Tbe driver of tbe overtaken vehicle is certainly not required in such case to anticipate that tbe latter will attempt to pass in violation of tbe statute.

New trial.